Cornell University Library KF 4600.C77 1890 A treatise on the constitutional limitat 3 1924 019 912 751 DATE DUE r ^ ^^ *■■*■■■■■■ I""' ' '•> 'Ji 1 GAVLORD PRINTED IN USA Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92401 991 2751 A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH KE8T UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION. THOMAS M.^OOLEY, LL.D., J POSMEKLY ONE 07 THE JUSTICES OP IHZ SUPBEUE COCST 07 UICBIGAB, AND JAY FROmSBOB OF LAW IH THE DNIVEBSITY 07 MICmSAH ; HOW OaAIKMAN 07 THE QITEBSTATE COMMEBOE OOHUISSIOH. SIXTH EDITION, WITH LAEGE ADDITIONS, GIVIHO THE BESnLTS OF THE BECENT OASES, Br ALEXIS C. ANGELL, OF THE DETROIT BAB. BOSTON: LITTLE, BROWN, AND COMPANY. 1890. J t Entered according to Act of Congress, in the year 1874, by Little, Bkowh, akd Company, In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1878, by Little, Bkown, and Company, In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1883, by Little, Brown, and Company, In the Office of the Librarian of Congress, at Washington. Entered. according to Act of Congress, in the year 1890, by Little, Brown, and Company, In the Office of the Librarian of Congress, at Washington. Uoo 1^^ University Press : John Wilson and Son,- Cambbidoi:. PREFACE TO THE SECOND EDITION. In the Preface to the first edition of this work, the author stated its purpose to be, to furnish to the practitioner and the student of the law such a presentation of elementary constitu- tional principles as should serve, with the aid of its references to judicial decisions, legal treatises, and historical events, as a con- venient guide in the ezamination of questions respecting the constitutional limitations which rest upon the power of the sev- eral State legislatures. In the accomplishment of that purpose, the author further stated that he had faithfully endeavored to give the law as it had been settled by the authorities, rather than to present' his own views. At the same time, he did not attempt to deny — what he supposed would be sufficiently ap- parent — that he had written in full sympathy with all those restraints which the caution of the fathers had imposed upon, the exercise of the powers of government, and with faith in the checks and balances of our republican system, and in correct conclusions by the genera,l public sentiment, rather than in re- liance upon a judicious, prudent, and just exercise of authority, when confided without restriction to any one man or body of men, whether sitting in legislati-?e capacity or judicial. In this sympathy and faith, he had written of jury trials and the other safeguards to personal liberty, of liberty of the press, and of vested rights; and he had also endeavored to point out that there are on all sides definite limitations which circumscribe the legislative authority, independent of the specific restrictions which the people impose by their State constitutions. But while not predisposed to discover in any part of our system the rightful existence of any unlimited power, created by the Constitution, iv PREFACE. neither on the other hand had he designed to advance new doctrines, or to do more than state clearly and with reasonable conciseness the principles to be deduced from the judicial decisions. The unexpected favor with which the work has been received having made a new edition necessary, the author has reviewed every part of it with care, but without finding occasion to change in any important particular the conclusions before given. Fur- ther reflection has only tended to confirm him in his previous views of the need of constitutional restraints at every point where agents are to exercise the delegated- authority of the people ; and he is gratified to observe that in the judicial tribu- nals the tendency is not in the direfction of a disregard of these restraints. The reader will find numerous additional references to new cases and other authorities ; and some modifications have been made in the phraseology of the text, with a view to clearer and more accurate expression of his views. Trusting that these modifications and additions will be found not without value, he again submits his work " to the judgment of an enlightened and generous profession." THOMAS M. COOLEY. Uniteebitt op Michigan, Ann Abbob, July, 1871. PREFACE TO THE THIRD EDITION. The second edition being exhausted, the author, in preparing a third, has endeavored to give full references to such decisions as have recently been made or reported, having a bearing upon the points discussed. It will be seen on consulting the notes that the number of such decisions is large, and that some of them are of no little importance. THOMAS M. COOLEY. TJnivebsitt op Michigan, Ann Abbob, December, 1873. - PREFACE. PREFACE TO THE FOURTH EDITION. New topics iu State Constitutional Law are not numerous; but such as are suggested by recent decisions have been dis- cussed in this edition, and it is believed considerable value has been added to the work by further references to adjudged cases. THOMAS M. COOLBY. Univbbsity op Michigan, Anit Aebob, April, 1878. PREFACE TO THE FIFTH EDITION. In this edition numerous cases reported since the last was published are referred to, and such modifications of text and notes as the new cases seemed to call for have been made. THOMAS M. COOLEY. Univbesitt op MiCHioAir, Ann Abbob, February, 1883. PREFACE TO THE SIXTH EDITION. The period that has elapsed since the last preceding edition of this work was published, has been prolific in Constitutional questions, and a new edition seems therefore important. The official duties of the author putting it out of his power to perform in person the necessary labor, the services of Mr. Alexis C. Angell of the Detroit bar were secured for the purpo'se, and by him the VI PKEFACB. edition now offered to the public has been prepared. Mr. Angell has examined all the new cases, making use of them so far as seemed important, and adding to the references till the whole number now reaches over ten thousand. Where it seemed necessary, the text has been changed and added to. It is hoped the edition will be found satisfactory, not only to the legal pro- fession, but to others who may have occasion to examine constitutional questions in the light of the judicial decisions. THOMAS M. COOLEY. Ann Akbok, June, 1890. TABLE OF CONTENTS. CHAPTER I. DEFINITIONS. Page Definition of a state, nation, people, sovereignty, and sovereign state 3 What sovereignty consists in S, 4 Apportionment of sovereignty in America 4 Definition of constitution and constitutional government . . . . 4, 5 Of unconstitutional law 5 The will of the people the final law 6 CHAPTER n. THE CONSTITUTION OP THE UNITED STATES. What the United States government the successor of; Colonial con- federacies 7 The States never in a strict sense sovereign 8 The Continental Congress 8, 9 Limitations upon its power ; the Articles of Confederation, and the supersession thereof.by the Constitution 9 Adoption of the Constitution by Nor '^^^ Other regulations 758 Preliminary action by authorities, notice, proclamation, &c. • . 759 Mode of voting ; the ballot 760 Importance of secrecy ; secrecy a personal privilege .... 760-763 Ballot must be complete in itself 764 Parol explanations by voter inadmissible 764 Names on ballot should be full 765 Abbreviations, initials, &c 766, 767 Erroneous additions do not affect 767 Evidence of surrounding circumstances to explain ballot . . . 768, 769 Boxes for different votes ; errors in depositing 770 Plurality to elect 747, n, 770, 771 Freedom of elections ; bribery 771 Treating electors ; service of process 772 Betting on elections, contracts to influence them, &c 772 Militia not to be called out on election days 773, 774 Electors not to be deprived of votes 775 Liability of officers for refusing votes 776 Elector's oath when conclusive 776 Conduct of election 776 Effect of irregularities 777-779 Effect if candidate is ineligible 780 Admission of illegal votes 780 Fraud, intimidation, &c 780-782 Canvass and return of votes ; canvassers act ministerially . . . 782-784 Contesting elections; final decision upon, rests with the courts . 785-791 Canvasser's certificate conclusive in collateral proceedings ; courts may go behind 787 What proofs admissible 788-790 Whether qualification of voter may be inquired into by courts . 790 Index 793 TABLE OF CASES. Page Abbett V. Com'ra Johnson Co, 257, 301 Abbott V. Commonwealth 443 V. Kansas City, &c. Co. 647 V. Lindenbower 452, 453, 470 Abell V. Douglass 85 Abels V. Supervisors of Ingham 750 Abendroth v. Greenwich . 228 Abercrorabie v. Baxter 352 Aberdeen v. Saunderson 290 V. Sykes 235, 271 Aberdeen Academy v. Aberdeen 294 Abington v. North Bridgewater 755 Ableman v. Booth 4, 422 Ackerman v. Jones 551 Ackley School Dist. v. Hall 173 A Coal Float v. Jeflersonville 242 Adams, Ex parte 389 V. Adams 27, 425 V. Beale 452 V. Beman 634 V. Chicago, &c. R. R. Co. 673, 683 V. CouUiard 719 V. Cowles 501 V. Field 66 V. Hachett 341 V. Howe 106, 154, 201, 217 V. Palmer 131, 343, 344 V. People 149 V. Rankin . 521 V. Rivers 687 V. Somerville 620 V. State 224, 399 V. Voee 424 V. Wiscasset Bank 295, 298, 301 Adams Co. v. Burlington, &c. R. R. Co. 20, 61, 67 V. Quincy 598 Adanison v. Davis 450 Addoms v. Marx ' 454 Addy V. Janesville 256 Ad Hine, The v. Trevor 29 Adler v. Whitbeck 609, 639 Ah Pook, Matter of 435 Ah Foy, Ex parte 246 Ah Jow, In re 422 Ah Kow V. Nunan 482 Ahl V. Gleim 279, 458 Akron v. Chamberlain 251 Alabama, &c. Ins. Co. v. Boy kin 464 Alabama, &c. R. R. Co. v. Kenney 339 Page Alabama R. R. Co. v. Kidd 266 Albany Street, Matter of 197, 215, 436, 662, 663, 665, 693, 701 Albertson v. Landon 126, 454 Albrecht v. State 170, 171, 608, 611 Albrittin v. Huntsville 302 Aloook V. Cooke 436 Alcorn v. Hamer 139, 629 Alderman v. School Directors 224 Alderson v. Com'rs 785 Aldrich v. Aldrich 161 V. Cheshire R. R. Co. 667, 696, 703 u. Kinney 27, 498 u. Printing Co. 535 K.. Sharp 504 Aldridge ». Railroad Co. 455, 663 V. Williams 81 Alexander v. Alexander 441, 519 V. Baltimore 623 V. Bennett 107 V. McKenzie 332 V. Milwaukee 251, 666, 669 V. Mt. Sterling 804 V. People 216 V. Taylor 63 V. Worthington 70, 80 Alexandria & F. Ry. Co. v. Alexan- dria, &c. R. R. Co. 686 AUbyer v. State 77, 455 Alleghany City v. McClurkan 272 Allegheny Co. v. Gibson 293 Allegheny County Home's Case 176. 178 Allen V. Aldrich 413 V. Archer 457 V. Armstrong 462, 453, 470 V. Baltimore & O. R. R. Co. 18 V. Cape Fear, &c. Ry. Co. 520 V. Chippewa Falls 255 K. Crofoot 542 V. Drew 624, 627 V. Jay 262, 267, 599, 601, 606, 658 V. Jones ■ -648 V. Louisiana 212 V. McKeen 306 V. Pioneer Press Co. 484, 562 V. Staples 368 V. State 390 V. Taunton 262 V. Tison 175 V. Wyckoff 17 XX TABLE OF CASES. Page Allen Co. Commissioners v. Silvers 2ia, 216 AUentown v. Henry 623 Alley V. Edgeeomb 276 AUor V. Auditors " 196, 504 Almy V. California 595 Alston V. Newcomer 755 Altenburg v. Commonwealth 716 Alter's Appeal 466, 482 Altnow V. Sibley 301 Alton V. Hope 309 Alton Woods, Case of 436 Altvater v. Baltimore 284 Alvin a. Collin 773 Alvord V. Collin 640 Amann v. Damm 525 Amberg v, Rogers 452 Amboy v. Sleeper 240 Ambrose v. State 240 Amenia ;;. Stamford 630 American Fur Co. v. United States 719 American Print Works v. Lawrence 646, 739 American River Water Co. v. Ams- den 728 Americus v. Mitchell 742 Ames V. Boland 491 «. Lake Superior R. R. Co. 336, 695, 709 V. Port Huron Log Driving and Booming Co. 446, 509 Amey v. Mayor, &c. 140 Amis V. Smith 21 Amory v. Keokuk 617 Amsbaugh ?'. Exchange Bank 499 Amsterdam Water Com'rs, Matter of 688 Amy V. Selma 228, 230 V. Smith 25 Anderdon v. Burrows 705 Anderson v. Dunn 159 V. East ' 254 V. Hill 179, 275, 605 V. Jackson 64 V. Kerns Draining Co. 614, 628, 656 V. Millikin 486 V. O'Conner 233 V. State 415. V. Wellington 246 Andover v. Grafton 269 Andres v. Wells 557 Andrew ». Bible Society 680, 681 Andrews, Mx parte 725 V. Beane 114, 469, 471 V. Beck 604 V. Carney 110 V. Insurance Co. 239 V. Page . 130, 469 V. People 183 V. Russell 462 i;. Simms 407 .-..State 106,201,388,427 V. St. Louis Tunnel Co. 188 V. Wheaton 491 Andrus ». Board of Police 479 Anniible v. Patch 440 Annapolis o. Harwood 162 Annapolis v. State 173 Annis v. People 386 Anniston, &c'. R. R. Co. v. Jacksonville &c. R. R. Co. 686 Anonymous 442 Anthony v. State 388 Antisdel v. Chicago, &c. R. R. Co. 713 Antoni v. Greenhow 18, 347 V. Wright 196, 344 Antonio v. Gould 176, 177 Arayo v. Currell 150 Arbegust v. Louisville 616 Arctander, Matter of 411 Arimond v. Green Bay Co. 646 Arkadelphia v. Windham 303 Arkansas V. L. &c. Co. ». Mann 505 Armington v. Barnet 838, 688, 647, 662, • 667,670 Armstrong i'. Harshaw 27, 498 V. Jackson 210, 477 V. State 392, 396 Arnold v. Arnold , 586 ». Davis 754 V. Decatur 649, 663 t;. Kelley 113, 484 V. McKellur 185 V. Mundy 728 Arnson v. Murphy 17 Arrowsmith v. Burlingim 432 V. Harmoning 20 Arundel v. McCuUoch 728 Ash V. Cummings 659, 692, 694 V. People 243, 723, 744 Ashbrook v. Commonwealth 721 Ashcroft V. Bourne 502 Asher v. Louisville, &o. R. R. Co. 700 V. Texas 597 Ashley t'. Peterson 368 V. Port Huron 256, 309, 669, 670 Ashuelot R. R. Co. v. Elliott 120, 337, 353 Aspinwall v. Conimissioners 228 Astley V. Younge 542 Astor V. New York 456 Astrom v. Hammond 222 Atchison v. Bartholow 228 V. King 309 Atchison, &c. R. R. Co. v. Betts 35 Atchison & Nebraska K. R.' Co. v. Baty 454, 713 Atchison, T. & S. F. R. R. Co. v. Howe 607 Athearn v. Independent District 224 Athens v. Georgia R. R. Co. 247 Atkins V. Plimpton 593 i). Randolph 285, 306 Atkinson v. Bemis 238 V. Detroit Free Press 569 V. Dunlap 113, 448, 465 V. Goodrich Transp. Co. 243 V. Marietta & Cincinnati R. B. Co. 661 Atlanta v. Central R. R. Co. 702 V. Green 690 V. Word 690 Atlantic & Ohio R. R. Co. v. SuUi- vant 651 TABLK OF CASES. XXI Page Atlantic, &c. Telegraph Co. v. Chicago &c. K. R. Co. atse, 670 Atlantic De Laine Co. II. Mason 235 ' Attaway v. Cartersviile 257 Atty.-Gen. v. Barstow 78.3, 785, 786 V. Brown 183, 182, 183, 222 V. Brunst 30 t>. Cambridge 230 V. Chicago, &c. R. E. Co. 203, 337, 710, 711, 736 V. Common Council of Detroit 100 748 V. Detroit & Erin Plank Road Co. 70, 72 V. Eau Claire 37, 219, 601 V. Ely 765, 766, 768, 778, 783, 785, 788, 789 V. Exeter 297 V. Geerlings 573 V Joy 168, 176 V. Morris & Essex E. R. Co. 672 V. New York 250 V. Railroad Companies 182, 336, 737 V. Railway Co. 683 V. Rice 162, 163, 171 V. Supervisors of Lake Co. 222 V. Supervisors of St. Clair 775 V. Weimer. 139 V. Winnebago, &e. Plank Road Co. 620 Atwater v. Wobdbridge Atwill V. Mackintosh Atwood V. Lincoln V. Welton Auditor v. Holland Auditor of State v. R. R. Co. Augusta V. Murphy V. Sweeney Augusta, &c. R. R. Co. v. Renz Augusta Bank t- . Augusta Augusta Factory v. Augusta Augustin V. Eggleston Auld V. Butcher V. Walton Aurora v. Reed Aurora City v. West Austen v. Miller Austin et al., In re V. Coggeshall V. Gas Co. V. Murray Austine v. State Avery- 11. Tyringham Axtell V. Gerlach Aycock V. Martin Ayers, In re V. Grider Aylesworth v. St. John Aynette i. State Ayres v. Methodist Church 299, 338 524 235 586 137 Atchison, &c. 107 636 331 725 347, 631 632 779 346, 450 757 667 60, 140 23 410 261 632 241, 245, 247, 248 882 573 639 854 17, 424 519 544 427 580, 582 B. Bahcock V. Buffalo V. Camp Page Baccigalupo v. Commonwealth 375 Bachelder v. Moore 390 Backus V. Lebanon 335, 337, 504 Bacon v. Artliur 732 V. Callender 442, 469, 477 V. Fisher 407 V. Mich. Cent. R. R. Co. 519, 525 . V. Wayne County 406 V. York County 783 Bagg's Appeal 114, 448 Bagnall v. London & N. W, R. Co. 696 Bailey v. Commonwealth 88 V. Fisher 752 V. Fiske 486 V. Gentry 59 V. Milner 23 V. Milteriberger 646 V. New York 294, 303, 333 V. Philadelphia, &o. R. R. Co. 60, 192, 710, 712, 732 309, 742 V. Sweeney 687 V. Wright , 364 Bailey's Case 414 Bain, Ex parte 327 Baird v. Mayor 506 V. State 167 Baity v. Cranlill 459 Baker v. Boston 742 V. Braman 196, 214 V. Cincinnati 614 V. Ducker 573 V. Gordon . 426 V. Johnson 688, 694 V. Kelly 449 u. Kerr 503 V. Lewis 728 V. Mattocks 35 V. Panola Co. 609 V. People 496 V. Portland 745 V. Rand 61 c/. State 399, 401 u. Stonebraker's Adm'rs 448 V. Windham 259 Balch V. Commissioners 656 Baldwin v. Bank of Newberry 357 V. Chicago 244 V. Flagg 353 V. Franks 15 V. Green 239 V. Hale 356, 357 V. Newark 347, 455 V. New York 288 V. North Branford 228, 275 V. State 187 Balfour v. Louisville, &c. R. R. Co. 700 Ball V. Chadwick 80 V. Commonwealth 875 u. Gilbert 772 V. Winchester 301 V. Woodbine 254 Ballard v. State 375 Ballentine v. Mayor, &c. 200 Ballou ». State 256 Balm V. Nunn 504 61 1 Baltimore v. Baltimore, &c. R. R. Co. 487 XXll TABLE OF CASES. Page Baltimore v. Cemetery Co. 632 Barker v. People 29, 79, V. Clunet 138, 341 V. Pittsburgh V. Eschbach 272 Barling v. West V. Hussey 598 Barlow v. Lambert V. Johns Hopkins Hosp. 617 Barnaby v. State u. Pendleton 308 Barnard v. Bartlett V. Kedecke 246 Barnes v. Campbell V. Seharf 434, 617 i>. District of Columbia V. State 80, 84, 134, 199, 204, 216, V. Dyer 218, 220, 221 481, 706 V. First Parish in F;ilmouth Baltimore, &c. R. B. Co. v. Fifth V. Lacon Bapt. Ch. 668 V. McCrate V. Magruder ■646 V. Pike Co. V. Nesbit 655 V. Suddard V. North 686 V. Supervisors V. Pittsburgh, &c. R. E. Co. 665, 695 Bamet v. Barnet Baltimore, &c. Turnpike Co. v. Union Bamett v. People R. R. Co. 339 V. Railroad Co. Bancroft v. Dumas 146, 716 0. Ward V. Lynnfield 260 Bamura v. Oilman V. Th^er Bandel y. Isaac 224 Barr v. Moore 80 Barre R. R. Co. a. Montpelier Banger's Appeal 609 Barrett v. Crane Bangs V. Snow 636, 640 V. Failing Bank v. Hines 605 V. Holmes V. Supervisors 691 Barron v. Baltimore Bank of Augusta v. Earle 150 ». Burnside Bank of Chenango v. Brown 139 ,142,145 V. Dent Bank of Chillicothe v. Chillicothe 232 Barron et. Matter of Bank of Columbia v. Okely 434, 486 Barrow v. Page Bank of Commerce v. New York 591 Barrows v. Bell Bank of the Dominion v. McVeigh 335 Barry, Ex parte Bank of Hamilton v. Dudley's Lessee 21, V. Lauck 759, 210, 443 V. Mercein ' 21, Bank of Illinois v. Sloo 66 Barry's Case Bank of Mich. v. Williams 208, 432 Bartemeyer ». Iowa Bank of Republic v. Hamilton 149 Barthelemy v. People Bank of Rome v. Village of Rome 140 Bartholomew v. Harwinton 278, Bank of the State v. Bank of Cape Bartlett v. Christhilf Fear 335 V. Crozier V. Cooper 484 V. Kinsley V. Dalton 28 V. Knight Bank of United States o. Daniel 21 V. Lang V. Norton 18 0. Morris Bank of Utica v. Mersereau 407 V. Wilson Bank Tax Case 591 Barto V. Himrod 137, 141, Bankers' Case 432 Barton v. Brown Bankhead v. Brown 652 661, 663 0. State Banks, Ex parte 376 V. Swepston Banks, The «. The Mayor 591 V. Syracuse Banner Pub. Co. v. State 632, 568 V. Thompson Banning v. Commonwealth 742 BartrufE v. Remey V. Taylor 430 Bass V. Fontleroy Bannon r. State 480 11. Nashville Baptist Church v. Wetherell 572, 573 Bassett v. Porter Barbemeyer v. Iowa 15 Basten v. Carew Barber v. Root 495, 496 Batchelder v. Batchelder V. St. Louis, &c. Co. 550 Bates V. Delavan V. Trustees of Schools 224 V, Huston Barbier v. Connolly 11, 16, 707 V. Kimball 59, 108, Barbour v. Barbour 441 V. McDowell r. Camden 279,468 V. Relyea I'. Erwin 448 V. Spooner Barclay v. Howell's Lessee 689 V. Taylor Barker, Ex parte 26 Bates Co. v. Winters i>. Cleveland 61 Bathrick v. Detroit Post, &o. Co. Page , 401, 748 332 242, 244 35 724 372 556 228 624 84 286 542 778 151 768 463, 466 401 713 520, 521 749, 780 542 686 600 500 449 29 17 500 376, 377 648 650, 557 422 , 760, 775 , 422, 425 425 25, 718 570 , 279, 468 643 265, 301 235 27, 498 442 71 456 , 142, 144 215 S89 234 302, 308 61 455 149 99, 341 237 602 494 498 673 , 113, 192 441 64 61 136 269 550 TABLE OF CASES. XXIU Page Batman v. Megowan 785 Batre v. State 396, 398 Battle V. Howard 176 Baugher v. Nelson 320, 439 Baum V. Clause 619 ■p. Raphael 182 Bauman v. Detroit 253 Baxter, Matter of 317 V. Brooks 785 V. Winooski Turnpike 301 Bay V. Gage 455 Bayard v. Elinge 748 V. Singleton 38 Bay City v. State Treasurer 84, 273, 285 Bay City, &c. Co. v. Austin 348 Bayerque v. Cohen 22 Baylis v. Lawrence 568 Bayly v. Fourchy 545 Bays V Hunt 541 V. State 224 Beach v. Ranney 521 V. Viles 21 V. Walker 455, 458 Beachamp v. State 106, 201 Beal V. Nason . 447 V. State 150 Beall V. Beall ^140, 479 Beals V. Amador Co. 283 Bean v. State 373 Beard v. Beard 497, 500 V. Wilson 167 Bearden v. Madison 246 Beardsley v. Bridgeman 521, 557 V. Smith 295, 300, 301 ». Tappan 524 Beardsto wn v. Virginia 70, 81, 764,775, 790 Beasley v. Beckley 505 Beaty v. Knowler 231 Beaudeau v. Cape Girardeau 185 Beauregard v. New Orleans 21 Beck V. Stitzel 619 Beckwlth v. Bacine 355 Bedard v. Hall 163 Bedell, Ex parte 403 ». Bailey 507 Bedle v. Beard 237 Beebe v. State 109, 113, 200, 201, 209, 718 Beeoher v. Baldy 99, 214 Beeching's Case 418 Beekman v. Saratoga, &c. R. R. Co. 644, 652, 654, 656, 661, 662 Beeler v. Jackson 525 Beene v. State 410 Beer Co. v. Massachusetts 341, 706, 716, 717, 718, 721, 741 Beers u. Beers 505 V. Botsf ord 299 V. Haughton 347, 848 Beets I). State 387 Behrens a. Allen 551, 553 Beirne v. Brown 316, 318 Belcher Sugar Ref. Co. v. St. Louis Elev. Co. 654, 656, 684 Belden v State 63 Bell V. Clapp 367, 369 Page Bell V. Morrison 21, 22, 447 V. Norfolk, &c. R. R. Co. 647 V. Plattville 233 V. Prouty 653 V. Rice 368 V. State 879, 387 V. Sun Printing Co. 542 V. West Point 309 Belles ». Burr 753 Belleville R. R. Co. v. Gregory 72 Bellinger v. New York Cent. R. R. Co. 647, 667, 686, 703 Bellmeyer v. School District 223 Bellows V. Parsons 67 Bellport, Parish of v. Tooker 572 Belo V. Commissioners 631 Belvin v. Richmond 303 Bemis v. Becker 66 Benden v. Nashua 667 Bender v. Crawford 364, 448 V. State 185 Bendey v. Townsend 22 Benedict v. Goit C72 V. Smith 63 V. State 407 V. Vanderbilt 722 Benford v. Gibson 331 Benjamin v. Manistee, &c. Co> 730 V. Webster 249 Bennett v. Boggs 201 V. Borough of Birmingham 233, 242 V. Brooks 725 V. Bull 201 V. Deacon 525 u. Pisher 457 o. Harms 441 V. New Orleans 256 V. State 375, 586 Benoist v. St. Louis 621 Bensley v. Mountain Lake, &c. Co. 651 Benson v. Albany 204, 205 V. New York 199, 291, 292, 294, 333, 710, 714 Bentinck v. Franklin 448 Benton v. Trustees, &e. 257 Bents V. Graves 491 Benz V. Weber 173 Bergman v. Cleveland 244, 745 Berlin v. Gorham 138 Bernier v. Russell 483 Beroujohn v. Mobile 245 Berry v. Baltimore, &c. R. R Co. 162, 210 V. Carter 223, 520 V. Clary 464 V. Doane Point R. R. Co. 162 V. Ransdell 450 Berthold b.vFox 353 Bertholf v. O'Reiley 719 Bertonneau v. School Directors 481 Beseman v. Pa. R. R. Co. 668 Bethany v. Sperry 235 Bethune v. Hayes Mi Bettner v. Holt 620 Bevard v. Hoffman 776 Bibb V. Bibb 61 V. Janney 215 XXIV TABLir OP CASES. Page Bibb County Loan Association v. Richards 167 BicltneU v. Comstock 448 Biddle v. Commonwealth 605 V. Hooven 447 Bidwell V. Whittaker 70 Bielenberg v. Montana N. By. Co. 454, 713 Bigelow w. Bigelow 29 V. Kandolph 301, 302 V. W. Wisconsin R. R. 72, 219, 701 Big Grove v. WeUs 269, 272 Biggs, Ex parte 410 V. McBride 84, 133 Bigham v. State 399 Bill V. Norwich 309 Billings I'. Detten 470 V. Fairbanks 524 V. Wing 519 Billmeyer v. Evans 355 Bills V. Goshen 243 Bimeler v. Dawson 27, 499, 501 Binghamton Bridge Case 835, 339, 474 Bird, Ex parte 725 V. Daggett 272 V. Perkins 310 V. Smith 728 V. State 385 u. St. Mark's Ch. 573 V. Wasco County 182 Birdsall v. Carrick 186 Birdsong, In re 403 Birmingham v. MeCary 308 Birmingham, &c. St. Ey. Co. v. Bir- mingham St. Ry. Co. 252 Bishop V. Marks 629 Bissell V. Brlggs 27, 498 ». Jeffersonville 270, 272 V. Kankakee 269 V. Penrose 84 r. Spring Valley 269 Black V. Black 496 V. Columbia 254 V. Sherwood 598 V. State 400 Blackford v. Peltier 450 Blackhawk, Co. of, v. Springer 505 Blackinton r>. Blackinton 60 Blackman v. Halves 653 Blackwell v. State 380 Blackwood v. Van Vleit 77, 353 Bladen v. Philadelphia 90 Blahnt v. State 685 Blain v. Bailey 182 Blair v. Forehand 740 V. liilpatrick 490, 745 V. Milwaukee, &c. R. E. Co. 709 V. Ridgely 40, 316 V. West Poi^t 338 Blake :;. Dubugue 696 V. Rich 687 V. St. Louis 302, 308 • V. Winona, &c. R. R. Co. 711, 737 Blakely v. Devine 256 Blakemore v. Dolan 181 Blanchard v. Raines 605 V. Stearns 776 Page Blandford v. State 26 Blandford School District v. Gibbs 780 Blanding v. Burr 140, 283 Blatchley v. Moser 240 Bleakney v. Bank of Greencastle 458, 461 Bledsoe v. Commonwealth 373 Blessing v. Galveston 162, 167, 228 Blewett V. Wyandotte, &c. E. E. Co. 713 Blln V. Campbell 491 Bliss V. Commonwealth 201, 427 V. Hosmer 646 V. Kraus 227 V. South Hadley 687 Bliss's Petition 25 Block V. Jacksonville 720 Blocker v. Burness 586 Blodgett, In re 177 Blood V. Mercelliott 174 Bloodgood V. Mohawk & Hudson R.R. Co. 193, 650, 652, 654, 662, 691, 692 Bloom V. Richards 35, 574, 680, 585, 725 Bloomer v. Stolley 147 V. Todd 753 Bloomfield v. Charter Oak Bank 236 V. Trimble 240 Bloomfield, &c. Co. v. Calkins 674 Bloomington v. Bay 302 V. Brokaw 251, 256, 309 V. Wahl 244 BloEsburg, &c. R. R. Co. t>. Tioga R. R. Co. 22 Blount V. Janesville 251, 464, 615 Blumb V. Kansas City 254, 308 Blydenburg v. Miles 402, 743 Board of Commissioners v. Bearss 279 V. Bradford 261 V. Bright 467 V. Lucas 259 V. Merchant 16 V. Pidge 727 Board of Education v. Brunswick 196 V. McLandsborough 588 V. Minor 48, 225, 577, 580 V. Thompson 224, 225 V. Tinnon 482 Board of Public Works v. Columbia College 27 Board of Supervisors v. Cowan 283 V. Heenan 171 Board of Trade TeL Co. v. Barnett 670 Board Water Com. v. Dwight 177 Boardman v. Beckwith 456 Bode V. State 716, 717 Bodwell V. Osgood 532 Bogardus u. Trinity Church 35 Bogert V. Indianapolis 245 Boggs V. Merced, &c. Co. 643 Bohanan v. Nebraska 20 Bohannan v. Commonwealth 393 Bohen v. Waseca 309 Bohl V. State 585 Bohlman v. Green Bay, &c. E. E. Co. 649, 650 Bohmey v. State 239 Boice V. Boice 353 Boisdere v. Citizens' Bank 219 TABLE OF CASES. XXV Page Boiling V. Lersner 20 Bollman and Swartout, Ex parte 424 Bolton V. Johns 443, 465 V. Prentice 413 Bombaugh i>. Bombaugh 440 Bonaparte, Prince Pierre, Trial of 379 Bonaparte v. Tax Court 598 Bond V. Appleton 66 V. Commonwealth 889 V. Kenosha 614, 615, 640 V. State 375 Bonham v. Needles 271 Bonnett v. Bonnett 425 Bonney v. Bowman 503 Bonsall v. Lebanon 726 Boogher v. Knapp 519 Booker v. Young 748 Boon V. Bowers 64, 122 Boonville v. Ormrod 695 V. Trigg 182 Boorman v. Santa Barbara 444, 617 Booth V. Booth 458 V. Woodbury 279, 601, 691 Borden v. Fitch 27, 495 Boro V. Phillips Co. 629 Borough of Dunmore's Appeal 230, 283, 288, 334 Borough of York v. Forscht 261 Bosley v. Mattingley 70 Bossier v. Steele 176 Bostick V. State 743 Boston V. Cummins 202, 321 ». SchafEer 243, 609 V. Shaw 246, 726 Boston, &c. Railroad Co. /n re 685 ■ Boston, Concord, & M. R. R. Co. v. State 715, 716 Boston & Lowell R. R. Co. v. Salem & Lowell R. R. Co. 339 Boston & M. R. R. Co. v. Com'rs 711 Boston & Roxbury Mill-dam Corpor- ation V. Newman 658, 662 Boston Mining, &c. Co., Matter of 180 Boston Water Power Co, v. Boston & Worcester B. R. Co. 339, 647 Bostwick V. Perkins 491, 492 Boswell V. Commonwealth 375 V. State 375, 399 Botts V. Williams 28' Boucher v. New Haren 309 Boughton V. Carter 646 Boulder v. Niles 303 Bounds V. Kirven 673 Bourgeois, Ex parte 241 Bourland v. Eidson 521 V. Hildreth 153, 754, 778 Bourne v. The King 403 Bow V. AUenstown 225, 237, 238 Bowdoinham v. Richmond 230, 351 Bo wen v. Byrne 593 V. Hixon 785 V. King 235 V. Preston 441 V. State 17 Bowie V. Lott 9^ Bowles V. LandafC 281 Page Bowling Green v. Carson 244, 744 Bowman v. Chicago & N. W. Ry. Co. 717 V. Middleton 198, 208, 436 V. Smiley 215, 355 Boxwell V. Affleck 572 Boyce v. Sinclair 457, 461, 467 Boyd, In re 134 Boyd V. Alabama 706 V. Bryant 146, 744 V. Ellis 29 V. Roane 501 V. State 178, 341, 382 Boye V. Girardey 609 Boyland w. New York 304 Boyle, Matter of 152, 189, 190 V. Arledge 22 V. Zacharie 357 Brackett v. Norcross 442, 478 Bradbury v. Davis 66 Braddee v. Brownfield 202 Braddy v. Milledgeville 245 Braden v. Stumph 748 Bradford v. Brooks 114, 448 u. Cary 332 u. Shine 354, 448 V. Stevens 717 Bradley, Ex parte 890, 410 u. Bander 631 u. Baxter 137 V. Buffalo, &c. R. B. Co. 713, 716 V. Fisher 410 V. Heath 524, 533, 546. 570 V. McAtee 227, 838, 341,615, 623,624 V. New York &. N. H. R. R. Co. 487, 653, 663 V. People 691 Bradshaw v. Heath - 27, 495, 498 V. Omaha 221, 228, 616 V. Rogers 691 Bradstreet Co. v. Gill 524 Bradt v. Towsley 520, 521 Bradwell v. State 15, 25, 40, 490 Brady v. Bronson 650 V. King 471 V. New York 271, 272 V. Northwestern Insurance Co. 245, 739 V. Richardson 491 V. West 183 Bragg V. Meyer 23 V. People 472 Bragg's Case 496 Bragg? V. Tuflfts 23 Brainard v. Colchester 337, 338 Branahan v. Hotel Co. 247 Branch v. Tomlinson 215 Branch Bank of Mobile v. Murphy 188 Brandon v. Gowing 407 V. People 385 V. State 175 Branham v. Lange 135, 181, 182 Branson v. Philadelphia 253, 712 Brassard v. Langevin 772 Brasso v. Buffalo 308 Brann i>. Chicago 609 Braynard v. Marshall 18 XXVI TABLE OF CASES. Page Breeding v. Davis 441 Breitenbach v. Bush 854 Breitung v. Lindauer 348, 349 Brenhaiu v. Brenham Water Co. 232 V. Story 122 Brent v. Chapman 448 Brevoort v. Detroit • 456 V. Grace 120, 122 Brewer v. Bowman 653 V. Davis • 882 V. Mayor, &c. 162 V. New Gloucester 297 V. Weakley 537, 768 Brewer Briclc Co. v. Brewer 137, 632, 633, 634 Brewster v. Davenport 254 V. Hough 148, 337, 632 V. Syracuse 178, 467, 468, 603 Brick Presbyterian Church r. New York 148, 250, 341, 740 Bricker v. Potts 619 Bridge v. Ford 500 Bridge Co. v. Hoboken Co. 335 Bridgeport v. Housatonic B. K. Co. 140, 439, 467 Bridges, Ex parte 421 V. Shallcross 133 Bridgewater v. Plymouth 473 Brien v. Williamson 76, 99 Bries wick v. Mayor, &c. of Brunswick 175. Brig Aurora v. United States 138 Briggs V. Garrett 637 V. Georgia 93 V. Hubbard 439, 448, 455 V. Johnson Co. 223 V. Lewiston, &c. Co. 677, 683 V. Whipple 260 Brigham W.Miller 86,132 Bright V. Boyd 477 V. McCulloch "172, 611 Brightman v, Bristol 742 Brighton v. Wilkinson 228, 229 Brimmer v. Boston 341 Briukmeyer v. Evansville 302 Brinton v. Seevers 465 Brisbm v. Cleary 763 Briscoe z> Anketell 850,442 V. Bank of Kentucky 11, 28, 196 Bristol V. Johnson 259, 260 V. New Chester 230, 291 V. Supervisors, &o. 443 Britain v. Kinnard 601 British Plate Manuf . Co. ». Meredith 667 Brittle v. People 42 Britton V. Des Moines, &c. R. K. Co. 702 V. Ferry 84 Broadbent v. State 486 Broadfoot's Case 363 Broadnax u. Baker 489 Broadway Baptist Church v. McAtee 632 Broadwell v. Kansas City 256, 670 Brock V. Barnet 653 V. Hishen 692 V. Milligan 586 Brockway v. Kinney 61 Brodhead v. Milwaukee 278, 601, 602 Page Brodnax v. Groom 162 Broil V. State 396 Eromage v. Prosser 659 Bromley v. People 149 V. Keynolds 610 Bronson v. Bruce 637, 556, 558 V. Kinzie 346, 348, 349, 352 V. Newberry 847, 848 V. Oberlin 247, 744 V. Wallace 22 V. Wallingford 250 Brook V. Montague 546 Brooker v. Coffin 619, 520 Brooklyn v. Breslin 244 Brooklyn & Newtown R. R. Co. v. Coney Island R. R. Cb. 679 Brooklyn Central R. R. Co. v. Brook- lyn City R. R. Co. 238, 677, 679 Brooklyn Park Commissioners v. Armstrong 656, 688 Brooklyn Trust Co. v. Hebron 235 Brooks u. Harison 519 V. Hyde 153 V. Missouri 20 V. Mobile School Commissioners 72 Brophy v. Hyatt 726 Brosnahan, In re 422 Brotherton v. People 875 Brow V. Hatheway 533 Brower v. O'Brien 783 Btowti, Ex parte 27,871,376 In re 425 V. Beatty 644, 696 V. Brown 164 V. Cape Girardeau 221 V. Cayuga, &c. R. R. Co. 646, 668, 696 V. Chadbourne 727, 732 ». Com'rs Rush Co. 784 V. Commonwealth 388 V. Denver 617 V. Duffus 110, 424 V. Duplessis 681 V. Fifleld 75 V. Fleischner 142 V. Foster 501 V. Grover 79, 753 V. Hanson 519 V. Haywood 481, 482, 483 V. Hitchcock 348 V. Houston 694, 595 V. Hummel 836 V. Leitch 215 V. Lunt 752 V. Maryland 594, 595, 717, 724 V. McCoUum 765 V. New York 464 V. Parker 448 V. People 327 o. Phillips 753 V. Pratt 35 V. Providence, W. & B. R. R. Co. 703 V. School Dist. 640 V. Seay 99 V. Smith 520, 615 f. State (5 Col.) 86 V. State (79 Ga.) 176, 399 TABLE OF OASES. XXVll Page Brown v. State (7 S. E. Rep.) 841 V. State (32 Miss.) 888 .;. State (8 Blackf.) 390, 492 V. State (16 Ind.) 390 V. Storm 477 V. Turner 749 V. United States 84 V. Wilcox 77 V. Worcester 693 Brown's App. 608 Browne v. Scofleld 727 Browning v. Springfield 802, 303 BrownviUe v. Cook 240 Bruce v. Bradsiiaw 122 Bruffet V. Great Western R. R. Co. 335 Brumagim v. Tillingliast 595 Bruning!). N. 0. Canal & Banking Co. 651 Bruns v. Crawford 854 Brunswick v. Finney 139, 140 Brush V. Carbondale 251 V. Keeler 773 Blryan, Ex parte 389 V. Cattell 332 v. Page 284 V. Reynolds 163 V. Walker 445 Bryant v. Bobbins 107, 733 Bryson v. Bryson 132 V. Campbell 132 Buchanan v. Hubbard 35 V. Jones 503 V. Litchfield 269 Bucher v. Cheshire B. R. Co. 22 Buchner ». Chicagp, &c. R. R. Co. 674 Bueki M.,Cone 727 Buckingham v. Davis 509 V. Ludlum 63 V. Smith 648, 652 Buckles V. Ellers 35 Buckley v. N. Y. & N. H. R. R. Co. 716 Bucknall v. Story 639 Buckner m. Gordon 754 Budd V. State 483 Buddington, Matter of 424 Buell V. Ball 258, 616 Buffalo V. Holloway 308 V. Webster 244 [, 246, 744 BuiEEalo, &c. R. R. Co. v. Ferris 505, 692 Buffalo & N. y. R. R. Co. v. Brainerd 653 Buffalo & Niagara R. R. Co. v. Buffalo 712 Buffalo, N. Y. & P. R. R. Co. u. Har- yey 695 V. Overton 647 Bulger, In re 331 Bulkley v. Callanan 640 u. N. Y. &N. H. R. R. Co. 713, 714 Bull V. Conroe 472, 482 V. Read 138, 138 , 143, 201 Bullock V. Curry 263, 268 Bumgardner v. Circuit Court 842 Bumpass v. Taggart 593 Bumsted v. Govern 153, 171 Bunn V. Gorgas 354 V. People 84 ,B. Riker 772 Bunion v. Worley 543 Page Buonaparte v. Camden & Amboy R. R. Co. 29, 266, 662 Bur, Ex parte 422 Burch V. Newberry 114 V. Savannah 609 Burckholter v. McConnellsville 227 Burden v. Stein ■ 666 Burdeno v. Amperse 76 Burdett v. Abbott 159 Burdick v. Babcock 226 Bureau Co. v. Railroad Co. 607 Burford v. Grand Rapids 254 V. Wible 521 Burger, In re 423 Burgess v. Clark 659 V. Pue 84, 189, 145, 227 II. SeUgman 22 Burgett V. Burgett 169 Burghardt v. Turner 440 Burke v. Elliott 762 V. Gaines 20 V. Mechanics' Savings Bank 120 V. St. Paul, M., &c. Ry. Co. 107 V. Supervisors- of Monroe Co. 174, 781, 784 Burkett v. McCarty 764 V. McCurty 110 Burks V. Bennett 507 !>. Hinton 67 Burley v. State 389 Burlingame v. Burlingame 543, 544 Burlington V. Bumgardner 243, 609 V. Gilbert 251 V. Kellar 239, 636 V. Leebrick 119, 188 V. Putnam Ins. Co. 243 Burlington & M. R. R. R. Co. v. Rein- hackle 679 V. Webb 714 Burmeister v. Howard 233 Burnes :;. Atchison 614 Burnett, Ex parte 241, 242, 247 V. Sacramento 614, 623, 624 Burnhajm v. Chelsea 279 V. Commonwealth 498 V. Morrissey 159, 161 V. Stevens 424 BuTna, Ex parte, .119 " V. Clarion County 280, 283 Bhrnside, Ex parte 718 V. Lincoln Co. Ct. 197 ' Burr V. Carbondale 284, 605 V. Ross 162 Burrel v. Associated Reform Ch. 672 Burrill v. Augusta 267 V. Boston 275 V. West 63 Burritt v. Com'rs 183 V. New Haven 2.^3 Burrows, In re 505 BuTson V. Huntington 593 Burt V. Brigham 649 V. Merchants' Ins. Co. 645 V. Williams 114, 354 Burton u Burton 519 V. Chattanooga 256 XXVlll TABLE OF CASES. Burtt V. Pyle Buser v. Shepard Bush V. Indianapolis V. Kentucky V. Seabury V. Shipman Bushel's Case Bushnell v. Beloit Bushnell's Case Buskirk v. Strickland Page 390 347, 441 181 16 244, 744 832, 334 393, 424 140, 273 424 668 Butcher's Union Co. v. Crescent City Co. 341, 343 Butler V. Board of Regents 749 V. Chambers 741 V. Dunham 273 V. Famsworth 25 V. Palmer 346, 353, 469 V. Pennsylvania 331, 332 V. Porter 640 V. Pultney 279 V. Shiver 215 V. State 30, 135, 387 V. Supervisors of Saginaw 113, 610 V. Toledo - 456 Butler's Appeal 202, 633 Buttrick a. Lowell 257 Butts V. Swartwood 586 Buys V. Gillespie 520 Byam v. Collins 524 Byers v. Commonwealth 504 Byler v. Asher 757, 776 Byrd, Ex parte 244, 744 Byrne v. Missouri 23 Cabell V. Cabell 131 Cadwallader v. Harris 76 Cady V. Walker 407 Cage V. Trager 693 Cagwin V. Hancock 272 Gaboon V. Commonwealth 99 Cain V. Commissioners 146, 614 V. Syracuse 254 Cairo ». Bross 243 Cairo, &c. E. R. Co. <;. Sparta 269, 286 V. People 713 V. Trout 99 •Calaveras Co. v. Brockway 785, 788 Caleote v. Stanton 20 Calder v. Bull 11, 107, 202, 319 V. Kurby 341 Caldwell ». Alton 244 V. Barrett 146 V. Gale 65 V. Justices of Burke 140 V. Lincoln 609 Caldwell Co. b. Harbert 283, 449 Caledonian Ey. Co. v. Walker's Trus- tees 689, 690 Calhoun v. Fletcher 432 V. McLendon 112 California v. Centr. Pac. R. E. Co. 591, 607 Cal. Tel. Co. v. Alta Tel. Co. 339 Calking v. Baldwin 693, 694 Calkins v. Cheney u. Slate V. Sumner Call V. Chadbourne V. Hagger Callam v. Saginaw Callan v. Wilson Callendar v. Marsh Callendar's Case Callison v. Hedrick Calvin o. Reed Calwell V. Boone Cambridge v. Lexington Page .572, 573 385 542 139, 140 350, 447, 450 286 506 251, 667 526, 567 692, 693 495 254, 257 230 Camden v. Camden Village Corp. 700 Camden & Amboy E. E. Co. v. Briggs 713, 737 Cameron v. Chicago, &c. Ey. Co. ■ 700 V. Supervisors 650 Campau v. Detroit 213, 220 V. Langley 447 Campbell, Exparte 718 V. Bannister 525 V. Board, &c. 181 .,. Campbell 519 V. Dwiggins 617 V. Evans 447, 497 V. Fields 46 V. Holt 16. 448 II. Metr. St. Ey. Co. 677, 690 V. Morris 25, 490, 597 V. Quinlin 66 V. Spottiswoode 568 V. State 29, 401 V. Union Bank , .125, 201, 210 Campbell's Case 39, 103, 183 Canal Co. v. E. E. Co. 125 Canal Trustees v. Chicago 614 Cancerai ». People 390, 492 Cannon, In re 26 V. Brame 61 V. Hemphill 176 V. Mathes 94, 95, 176 V. New Orleans 596 Canton v. Nist 239 Cantril v. Sainer 179 Cantwell v. Owens 70 Cape Girardeau v. Eiley 97 Cape Girardeau Co. Ct. v. Hill 182 Cape Girardeau, &c. Eoad v. Dennis 665 Capen v. Foster 767, 758, 776 Caperton v. Martin 444 Caplis, Ex parte 378 Capper v. Mayor, &e. 271 Cardigan v. Page 773 Cardwell v. American Bridge Com- pany 38, 729, 731 Carey v. Chicago, &c. Ey. Co. 713 V. Giles 125, 202, 216 Cargill V. Power 213, 363 Carleton v. Bickford 27 V. Goodwin's Bx'r 114 V. Eugg 505 V. Whitcher 166 Carlisle o. United States 134 Carlslake v. Mapledoram 619 Carlton v. People 751 TABLE OF OASES. XXIX Page Carman v. Steubenville & Indiana R. R. Co. 669 Came v. Litchfield 384 Carothers v. Hurly 461 Carpenter v. Bailey 557 V. Dane County 406 y. Grand Trunk Ry. Co. 35 i;. Jennings 702 V. LandafE 700, 701, 702 V. Montgomery 189, 221 V. Oswego & Syracuse R. R. Co. 673 V. Pennsylvania 320, 463 V. People 73, 152, 396 V. Snelling 593 V. Tarrant 519 Carr, In re 149 V. Georgia R. R. Co. 694 V. Northern Liberties 254, 255, 256, 308 V. St. Louis 239 Carrington v. St. Louis 257 Carroll v. Missouri P. Ry. Co. 152 0. Olmsted's Lessee 121 V. State 427 V. St. Louis 254, 262 w. "Wis. Centr. R. R. Co. 668 Carroll Co. v. Smith 22 Carson w. Blazer 642 V. Carson 321, 344 V. Coleman 691 V. McPhetridge 749, 780 Carter v. Balfour 12 V. Dow 243, 740 V. Dubuque 262 u. State 373 V. Walker 503 Carter Cq^ v. Sinton 173, 269 Carter's A,dm'r v. Carter 215 Cartersville v. Lanham 245, 726 Carthage v. National Bank 243 Carton v. Illinois Cent. R. R. Co. 712, 737 Caruthers v. Russell 773 Gary v. Western U. Tel. Co. 166 Casborus v. People 400 Case V. Dean 449, 453, 639 V. Dunmore 216, 355 V. New Orleans, &c. R. R. 61 V. Reeve 63 V. Rorabacker 160 V. State 751 V. Thompson 692 V. Wildridge 70 Cash, Appellant 124 V. Whitworth 656 Cass V. Dillon 140, 183, 281 Cass County v. Johnson 748 Casselman v. Winship 519 Cassidy v. Old Colony 703 Castellaw v. Guilmartin 61 Castleberry v. Kelly 519, 520 Castro V. De Uriarte 84 Cates V. Kellogg 557 V. Wadlington 727 Cathcart v. Robinson 35 Catlin V. Hull 598 V. Smith 41 Cattell V. Lowry 770 Page Caughran v. Gilman 27 Caulfleld v. Bullock 776 Cawley v. People 749 Cayuga Bridge Co. v. Magee 488 Cearfoss v. State 71 Center Tp. v. Cora'rs Marion Co. 61 Central, &c. R. R. Co. v. People 178 Central B. U. P. R. R. Co. v. Andrews 680 Central Branch U. P. R. R. Co. v. Atchison &c. R. R. Co. 644, 694 Central Bridge Corp. v. Lowell 336, 647 Central City Horse Railway Co. v. Fort Clark Horse Railway Co. 647 Central la. Ry. Co. u. Board 607 Central Ohio R. R. Co. v. Holler 702 Central Park Extension, Matter of 656 Central Plank Road Co. v. Hannaman 175 Central R. R. Co. v. Board of Asses- sors 596 V. Hetfleld 674, 685 V. Rockafellow 586 V. State 338 Centralia v. Scott 309 Centre.St., In re 624 Chadbourne v. New Castle 293 Chadwick v. Moore 354 Chafee v. Quidnick Co. 389 ChafEe v. Aaron 443 Chagrin Falls &c. Plank Road Co. v. Cane 672 Chalker v. Ives 443 Chamberlain v. Dover 235 V. Elizabethport, &o. Co. 672 V. Lyell 215 V. Sibley 136 Chamberlain of London u.'Compton 241, 246 Chambers v. Church 732 V. Fisk 84 V. Satterlee 624 V. State 181 Champaign v. Pattison 809 Chance v. Marion Co. 72, 73 Chandler v. Nash 107, 506 Chaney v. Bryan 495 Chapin v. Paper Works 488 Chapman v. Albany & Schenectady R. R. Co. 679 V. Calder 532 I'. Gates 692, 693 V. Macon 309 V. Morgan 491 V. Smith 60 Chappee v. Thomas 497 Cliariton v. Barber 248 Charles River Bridge v. Warren Bridge 320, 474, 487, 695 Charleston v. Benjamin 585 Charlestown Branch R. R. Co. v. Middlesex 692, 693 Charlton v. Alleghany City 667 V. Watton 551, 553 Charpentier v. Bresnahan 216 Chase p.Blodgett 28 V. Chase 494 V. Cheney 673 XXX TABLE OF OASES. Page Chase v. Fish 161 V. Merrimac Bank 298 a. MiUer 754 V. People 375 V. Stephenson 482 Chase's Case 567 Chattaroi Ky. Co. v. Kinner 347 Chauvin v. Valiton 610 Cheadle i). State 555 Cheaney v. Hooser 138, 279, 601, 604 Cheever v. Shedd 251 V. Wilson 28 Chenango Bridge Co. v. Binghampton Bridge Co. I ^87, 489 Cheney v, Jones 216 Chenowith v. Commonwealth 403 Cherokee v. Fox 244 Cherokee Nation v. Georgia 3, 76 Cherokee Tobacco, The 18 Chesapeake, &c. Co. v. Hoard 183 Chesapeake & Oliio Canal Co. v. Balti- more & Ohio U. R. Co. Chesapeake, &c. Ry. Co. v. Miller Chestnut v. Marsh V. Shane's Lessee Chestnut St., In re Chestnutwood v. Hood Chetwynd v. Chetwynd Chevrier v, Robert Chicago V. Baptist Union V. Bartree 647 71 91 463 670 748 426 448 633 245 309 309 309 614, 617 303 245 309 309 778 21, 302 485 689, 690 V. Brophy V. Hesing V. Langlass V. Lamed i;. McCarthy V. McGinn V. McGiven V. O'Brennan v: People V. Robbing V. RumpfC V. Taylor V. Wheeler Chicago & E. I. R. R. Co. i». Wiltse 653 Chicago & G. T. Ry. Co. u.Hough 666, 711 Chicago & N. W. Ry. Co. v. Chicago, &c. R. R. Co. 686 V, Langdale Co. 140 Chicago, &c. R. R. Co. v. Ackley 737 V. Adler 444 V. Barrie 713 V. Boone Co. 610 V. Haggerty 712 V. Iowa 15, 711, 737 w. Joliet 242,671,681,741 !.•. Lake 889, 647, 661, 683 V. Mallory 758, 778 V. Oconto 293 V. People 252, 712, 737 V. Smith 201, 649 V. Stein 670 V. Triplett 715 Chicago, B.&K.C.Ry. Co. w.GufEey 338 Chicago, B. & N. P. R. Co. o. Bow- man 700, 701 Page Chicago, B. & Q. R. R. Co. v. Wilson 666 Chicago, K. & N. Ry. Co. v. Hazels 690 Cliicago Life Ins. Co. «. Auditor 346 V. Needles 20, 335 Chicago, M. & St. P. Ky. Co. v. Becker 737 17. Minnesota 737 Chicago Mun. &c. Co. v. Lake 334 Chicago Packing, &c Co. v. Chicago 240, 248, 341 Chicago, R. I. &c. Co. v. McGlinh 149 Chicago, S. F. & C. Ry. Co. i: Ward 700 Chicago, W. I. R. R. Co. v. Ayres 690 V. Englewood, &c. Ry. Co. 668 V. 111. Centr., &c. Co. 686 Chidsey v. Canton 265, 301 Child V. Boston 255 ChUd's Case 423 Childress v. Mayor 245 Childs V. New Haven, &c. R. R. Co. 701 V. Shower 220, 477 Chiles V. Drake 176 V. Monroe 176 Chilvers v. People 242, 609, 732 Ghincleclamouche L. & B. Co. v. Com- monwealth 385 Chinese Exclusion Case 18 Chiniquy v. People 272 Chisholm V. Georgia 3, 8, 35 V. Montgomery 233 . Choper v. Eureka 303 Chouteau v. Gibson 63 Chow Goo Pool, In re 422 Chrisman v. Bruce 776 Christ Church v. Philadelphia 338, 343, 472 Christal «. Craig 519 Christian, In re . 721 V. Commonwealth 403 Christian Union v. Yount 151 Christie v. Bayonne 181 Christmas v. Russell 28 Christy i-. Commissioners 332 Chumasero v. Potts 136 Chmin V. Gray 27 Church V. Chapin 61 V. Kelsey 30 V. Rowell 754 Chute V. Winegar 270 Cincinnati v. Bryson 242 V. Buckingham 244 V, Rice 585 Cincinnati, &c. R. R. Co. v. Carthage 834 V. Cook 712 V. Commissioners of Clinton Co. 109 Cincinnati College v. State 6-32 Cincinnati Gaslight Co. v. Avondale 252 V. State 243, 609, 614 Cincinnati Gazette Co. v. Timberlake 550, 561, 562 Cincinnati Health Ass'n v. Rosenthal 25 Cincinnati, H. & I. R. R. Co. v. Clif- ford 335 Cincinnati, N. 0. & T. Ry. Co. v. Com- monwealth 607 Circleville v. Neuding 808 Cisco V. Roberts 722, 724 TABLE OF CASES. XXXI Page Citizens' Gas, &c. Co. v. Elwood 252 Citizens' Ins. Co., v. Parsons 11 Citizens of Cincinnati, In re 107 Citizens' Water Co. v. Bridgeport, &c. Co. 843 City Council v. Benjamin 725 V. Pepper 244 City National Bank v. Mahan 23 CivU Rights Cases 15, 734 Claflin V. Hopkinton 261, 275 Claiborne Co. v. Brooks 269 Clapp V. Cedar County 272, 273 V. Ely 115 Clare v. People 173 Clark, Ex parte 421, 752 Matter of 25, 26 V. Baltimore 455 V. Barnard 17 V. Binney 550 V. Board of Directors 482 V. Bridge Proprietors 230 V. Buclianan 784 V. Clark 129, 132, 344, 443, 455, 494 V. Commonwealtli 752 V. County Court 503 V. County Examiners 767, 768, 769, 783 V. Crane 90 V. Davenport 183, 6.36 V. Des Moines 231, 234, 262, 269, 272 V. Drain Com'r 695 V. Ellis ' aiO V. Holmes 500, 501 . V. Janesville 140, 189, 190, 273 V. JefEersonville, &c. R. R. Co. 66 V. Lamb 507 V. Le Cren 241, 246 V. Martin 346, 354 V. McCreary 442 V. McKenzie 784 17. Miller 222, 695 V. Mobile 138 h. MoUyneaux 559 V. People 80, 216, 218, 389 .,. Robinson 753, 754, 757, 767, 781 V. Sammons 61 V. School Directors 224, 238 V. South'Bend 246 V. State 321, 324, 375 V. Washington 250, 302, SOS V. White 652 Clark's Adm'r v. Hannibal & St. Joseph R. R. Co. 715 Clark's Case 363 Clarke v. Irwin 88 V. Jack 140 V. Rochester 220 V. Rogers ' 139 V. Smith 21 V. Van Surlay 120 Clason V. Milwaukee 241 C\a.y, Ex parte 423 V. Grand Rapids 615 V. Smith 357 Clay brook ». Owensboro 482 Clay Co. V. Chickasaw Co. 183, 230 Clayton v. Harris Cleburne v. Gulf, &c. Ry. Co. 232 Clee V. Saunders 601 Clegg V. Laffer 520 !). School District 294 Cleghorn v. Greeson 216 V. Postlewait 610 Cleland v. Porter 778 Clem V. State 396 Clemens v. Conrad 693 Clement v. Mattison 418 Cleveland, In re 107, 785 V. Creviston 63 V. Heisley 610 V. Rogers 600 V. Tripp 617 Clifton V. Cook 777 79 Clinton v. Cedar Rapids, &o. R. R. Co. 680 17. Draper 175 V. Englehrect 85 V. Phillips 246 Clippinger v. Hepbaugh 165 Clodfelter v. State 18 Cloud 17. Pierce City 501 Clough 17. Unity 696 Cloughessey v. Waterbury 309 Cloyd 17. Trotter 498 Coal Run Co. ?7. Finlen 607 Coast Line Ry. Co. v. Savannah 381, 834 Coates V. Campbell 601 V. Muse 22 Coatesville Gas Co. v. Chester Co. 99 Coats 17. Hill 444 V. New York 148, 245, 251, 740 Cobb V. Bord 153 Cobbett V. Hudson 423 CobbPtt's Case 423 Coburn v. EUenwood 238 17. Harvey 35 Cochran v. Darcy 353 V. Jones 749 17. Miller 349 V. Van Surlay 106, 120, 124, 201, 205 CQchran's Case 413 Cock B. Weatherby 619 Cockagne v. Hodgkieson 625 Cocke V. Halsey 752 Cockrum v. Stnte 427 Coddington v. Bispham 353 Coe V. Errol 596 V. Schultz 721, 740 Coffee V. State 384 Coffey 17. Edmonds 761 V. United States 60 Coffin V. Coffin 160, 549 V. Rich 348 17. State • 331 V. Tracy 491 Coffman v. Bank of Kentucky 354 V. Keightley • 279 Coggswell V. N. T. &o. R. R. Co. 668 Coglan 17. Beard 789 Cohen v. Barrett 169 V. Cleveland 251 17. Hoffi 115 17. Wright 818 Cohens v. Virginia 18, 19, 83 xxxu TABLE OF CASES. Page Cohn, Ex parte 607 V. Real 751 V. Hoffman • 349 Colburn v. Colburn 4H5 V. Woodworth 61 Colby V. Jackson 705 Coldwater v. Tucker 2BiJ Cole V. Bedford 281 V. Black River Falls 751 V. Eastman 642 V. La Grange 268, 271, 601 V. Medina 254, 303 V. Muscatine 251 V. Wilson 570 Coleinan, Matter of 407 V. Bellaudi 349 V. Carr 122 V. Yesler 219 Coles V. Madison Co. 228, 334, 444 CoUamer v. Page 491 Collector v. Day 592, 593 CoUey V. Merrill 35 Collier v. Frierson 43 Collins V. Collins 352, 492 V. Henderson 83, 224 V. Hills 717 V. Howard 728 V. Lean 368, 372 V. Philadelphia 255, 257 (. Stowell 400 581, 583 V. Sturtivant 382 35 0. Taylor 882, 383 85 V. Tewksbury 705, 739 158, 786 V. Towles 25 596, 737 V. Tuck 399 508 V. Tuckerman 383 137 V. Uprichard 150 35 V. Van Tuyl 396 642 368 V. Waite V. Walter 741 749 XX XIV TABLE OF CASES. Commonwealtli v. Wardwell 539 V. Wells 773 V. White 150 V. Whitney 505 V. Wilkins 244 V. Wilkinson 672 V. Williams 79, 451 I). Wolf . 585 V. Wood 398 .;. Worcester 241, 726 V. Wright 197 Commonwealth's Appeal 632 Commonwealth Bank v. Griffith 20 Comstock V. Gay 440 Concha v. Concha 63 Concord v. Boscawen 263 V. Portsmouth Savings Bank 269 V. Bobinson 269 Concord E. R. Co. v. Greeley 652 Condict V. Jersey City 257 Cone V. Cotton 498 V. Hartford 623, 629, 726 Coney v. Owen 478 Confiscation Cases 444 Congdon v. Norwich 309 Conkey v. Hart 346, 349, 350, 355 Conklin v. N. Y. &c. By. Co. 667, 669 V. State 400 Conneau v. Geis 505 Conn. M. L. Ins. Co. v. Cross 37 V. Cushman 353 Conn. Eiv. R. R. Co. v. Commissioners 693 Cbnnell v. Connell 463 , Connelly v. State 391 Conner, Ex parte 175 V. Elliott 24 V. Kew York 171, 331 Conners v. Burlington, &c. Ry. Co. 505 Connolly v. Boston 725 Connor v. Green Pond, &c. R. R. Co. 174 Connors v. Carp River Iron Co. 182 V. People 385, 386 Conrad v, Ithaca .302 Conservators of River Tone v. Ash 238 Consolidated Channel Co. v. Railroad Co. 657 Continental Imp, Co. v. Phelps 86 Contra Costa R. R. v. Moss 663 Conway v. Cable 452, 453, 455, 470, 471 V. Taylor's Ex'r 732 V. Waverly 640 Conwell V. Emrie 646 V. O'Brien 239 Cook V. Burlington C31 V. Cook 495 V. Gray 353 V. Gregg 347, 447 V. Hill 532, 533 V. Macon 257 V. Moffat 18, 357 V. Pennsylvania 695, 597, 717 V. Slocum 624 V. South Park Com'rs 694, 695 V. Vimont 63 Cookerly v. Duncan 457 Cooley V. Board of Wardens 595, 722 Page Cooley V. Fitzgerald 158 V. Freeholders 301 Coolidge V. Guthrie 652 V. Williams 488 Coombs V. Rose 532 Cooney v. Hartland 257 Coonradt v. Myers 444 Cooper, Re 389, 656 Ex parte 740 V. Barber 558 V. Board of Works 496 V. Cooper 495, 496 V. Greeley 521, 558 V. McJunkin 415 I'. People 390, 541 V. Stone 558 V. Sunderland 500,501 I/. Telfair 108, 202, 216 «. Williams 648, 652 Cooper's Case 526 Cooper Mfg. Co. v. Ferguson 84, 151 Coosa River Steamboat Co. v. Bar- clay 347, 715 Copas V. Anglo-Amer. Prov. Co. 498 Copes V. Charleston 140 Copp V. Henniker 505 Corbett v. Bradley 91 V. McDaniel 785 Corbln v. Hill 453 Corfield v. Coryell 24, 490, 597 Coriell v. Ham ~ 346 Corley v. State 382 Corliss, In re 749 Matter of 780 v. Corliss 93 Cornell v. State 249, 403 Cornet v. Winton 18, 691 Corning v. Greene 139 V. McCuUough 348 Cornwall v. Commonwealth 344 Corrigan v. Gage 246 Corsicana v. White 257 Corson v. Maryland 597 Corwin v. Comptroller 185 V. New York & Erie R. R. Co. 713 Cory V. Carter 481 Costar V. Brush 339 Coster t>. New Jersey R. E. Co. 688 Gotten V. Ellis 79 Cotton V. Commissioners of Leon 140, 202, 216 V. Phillips 748 Cotton Exchange v. Ry. Co. 737 Cottrel V. Union Pac. Ry. Co. 454 CotuUa V. Kerr 533 Couch V. McKee 448 Cougot V. New Orleans 744 Coulterville v. Gillen 239 Council Bluffs v. Kansas City, &c. R. R. Co. 737 County Commissioners v. Jones 831 County Court v. Griswold 656 County Treasurer v. Dike 137 Court of Appeals, In re 107 Courvoisier, Trial of 408 Cousins V. State 608 TABLE OE OASES. XXXV Coutant V. People Cover V. Baytown Covington v. Bryant v. East St. Louis V. Southgate Page 80, 84, 216 276 302 182, 183, 239 471, 604, 605, 616 Covington, &c. Ry. Co, v. Piel 650 Covington St. R. Co. v. Covington, &c. R. Co. 682, 688 Cowan V. McCutohen 461 ». Milbourn 580 Coward v. Wellington 533 Cowdery, In re 411 Cowen V. West Troy 239 Cowgill V. Long 469 Cowles V. Harts 63 Cowley V. Pulsifer 550 Cox, Ex -parte 110 V. Bunker 521 V. Coleridge 880 V. Cox 496 I). Lee 568 V. Louisville, &c. R, R. Co. 266, 673 V. Mason City, &c. R. Co. 700 V. State 153 Coxe V. Martin 354 Coxhead v. Richards 625 Coy, In re 425, 752 Coyner w. Lynde 492 Craft V. State Bank 35 Craig V. Andes 272 V. Brown 620 V. Burnett 241, 242 V. Dimock 593 V. First Presbyterian Church 740 V. Kline 729 V. Missouri 23 V. Philadelphia 626 V. Rochester City & Brighton R. R. Co. 674, 677 V. Werthmueller 719 Craighead v. Martin 504 Crandall, Petition of 423 V. James 61 V. Nevada 489, 696 V. State 26, 490 Crane w. Meginnis 131, 133, 600 V. School District . 224 V. Waters 558 Cranson v. Smith 12 Craven v. Winter 441 Craw V. Tolono 614 Crawford v. Delaware 261, 667, 669, 683 V. Dunbar 749, 780 V. Wilson 41 Crawfordsville v. Bond '256 V. Hays 224 Crawfordsville, &c. Co. v. Fletcher 72 Crawshaw v. Roxbury 261 Creal v. Keokuk 251, 667 Crease v. Babcock 138 Creevy v. Carr 570 Creighton v. Piper 749 V. San Francisco 283 Crenshaw v. Slate River Co. 202, 659 Creote v. Chicago 617 Cresap !'. Gray 783 Page Crescent City, &c. Co. v. Butcher's Union, &c. Co. 20 Creston v. Nye 378, 390 Crittenden v. White 12 Crocker v. State 505 Cromarty v. Boston 309 Cronau ». Cotting 66 Crone v. Angell 519 Cronin v. People 245, 246 Cronise ». Cronise 131, 344 Crosby «. Hanover 647 V. Lyon 634) 635 V. Warren 246, 742 Cross, Ex parte 149 V. Armstrong 27 V. Cross 496 V. Hopkins 227 CroBwell's Case 529, 530 Crouch, Ex ■parte 424 ■B. Hall 35 Crow V. Bowlby 61 Crowell D. Hopkinton 275, 279, 281, 602, 606 V. Randell 20 Crowley v. Burlington, &c. Ry. Co. 712 V. Copley 629, 733 V. State 21G Crozier v. Cudney 372 Cruikshanks '». Charleston 436 Crump V. Morgan 38 Crutoher v. Commonwealth 597 Cubbison v. McCreary 586 Cubreth, £a;/)ar(e 26 Cuddy, Ex parte 426 Cullen V. Carthage 233 Cumberland w. Willison 257 Cumberland, &c. R. R. Co. u. County Court 196, 455 Cummerford v. McAvoy 657 Cumming v. Police Jury 614 Curamings v. Ash 645 V. Howard 462 V. Missouri 46, 316, 318, 320, 321 V. National Bank 607, 610 V. Peters 656 K. Wingo 25 Cunningham v. Brown 542 V. Macon, &c. R. R. Co. 17 " V. State 375 Cupp V. Seneca Co. 497, 693 Curran u. Arkansas 23 V. Shattuck 691, 694 Currier v. Marietta & Cincinnati R. R. Co. 651 Curry ». Walter 551 Curryer v. Merrill 224 Curtis, Ex -parte ' 13 V. Curtis 519 V. Gibbs 27, 498 V. Gill 505 V. Hubbard 364 V. Leavitt 366, 444, 462 V. Mussey 535 V. State 378 V. Whipple 207, 604, 606, 658 V. Whitney 347, 349 XXXVl TABLE OF CASES. Cushman v. Smith Cusiu V. Douglas CutUp V. Sheriff Cutts V. Hardee Cuyler v. Kochester Page 691 348, 442 176, 179 354 491 Cypress Pond Draining Co. v. Hooper 509, '^ 601, 604 D. Dahbs V. State 743 Dada ». Piper 543 Daggett V. Hudson 757 Dailey v. Reynolds 520 V. State 749 Daily v. Swope 629, 636 Daily Post Co. v. MoArthur 562 Dakin v. Hudson 600 Dalby v. Wolf 227 Dale V. Irwin 754, 755, 758 V. Medcalf 464 V. State 396 V. The Governor 338, 472 Dallas Lumbering Co. v. Urquhart 666 Dalrymple v. Mead 727 Dalton V. State 158 V. Water CommlssionerB 649 Daly V. State 480 Damour v. Lyons City 256 Dana's Case 892, 506 Dancaster v. Hewson 544 Dane County v. Dunning 504 Danforth v. State 375 Daniel Ball, The 729 Daniells v. Watertown 456 Daniels v. Clegg . 66 Danks v. Quackenbush 347 Danville o. Pace 66, 201, 206, 442, 465, 462 V. Shelton 608, 682 Darcy v. AUain 342, 485 Dare Co. v. Currituck Co. 230 Dargan v. Mobile 303 Darling v. Boesch 185 V. Gunn 610 V. Rogers 152 Darlington v. New Tork 293 V. United States 645 Darrington v. State Bank of Alabama 23 Darrow v. People 153, 748 Darst V. People 242 Dart V. Houston 332, 336 Dartmouth College v. Woodward 148, 229, 266, 290, 306, 331, 335, 344, 431, 709 Dash V. Van Kleek 77, 110, 118, 820, 443, 455 Daubman v. Smith 178 D'Auvilliers v. De Livaudais 495 Davenport v. Barnett 61 V. Mayoi: 749 V. Richmond 250, 740, 741 V. Stevenson 254 V. Young 125 Davenport, &c. Co. v. Davenport 239 David V. Portland Water Cora. 282 Page Davidson v. Boston & Maine R. R. Co. 666, 667 V. Briggs 67 V. Lawrence 450 V. New Orleans 16, 433, 435, 617, 628, 733 Davies, In re 411 V. McKeeby 79, 437, 445 V. Morgan 241 Daviess Co. v. Dickinson 271 Davis V. Bank of Fulton 171 V. Boget 575 V. Brown 519 V. Davis 63 V. Dubuque 617 V. Duncan 541 V. Gaines 97, 152, 162, 602, 617 V. Gray 330, 333 V. Guilford 304 V. Holbrook 773 V. Jackson 255 V. Lynchburg 617, 624 V. McNees 543 V. Menasha 483 V. Minor 448 V. Montgomery 253 V. New York 250, 252 V. O'Perrall 441 V. Reed 249 V. Richardson 593 V. Rupe 353 V. Shepstone 589 i;. State 134, 171, 178, 182, 206, 210, 388, 463, 480 V. State Bank 122, 458 V. Wood 63 V. Woolnough 176 Davis's Lessee v. Powell 478 Davison' i'. Duncan 564 V. Johonnot 122, 482 Dawkins v. Paulet 543 V. Rokeby 643 Dawson v. Aurelius 257 V. Coffman 35 V. Duncan 657 V. Holt 558 V. Lee 482 b. Shaver 201 V. State 324 Day V. Gallup 20 V. Green 726 V. Jones 754 V. Kent 778 V. Munson 67 V. Savadge 500 V. Stetson 162 Dayton v. Quigley 246 Dayton Mining Co. v. Seawell 657 Dean v. Borchsenius 453, 467 V. Gleason 470, 634 V. Sullivan R. R. Co. 687, 696 Dean of St. Asaph, Trial of 408 Deansville Cemetery Association, Matter of 657, 661 Dearborn v. Boston, C. & M. R, R. Co. 266, 702, 703 TABLE OF CASES. XXXVll Deaton v. Polk Co. De Ben v. Gerard De Berry v. Nicholson Debevolse v. New York, L. E. & W. R. R. Co. Deblois v. Barker Debolt V. Ohio Life Ins. & Trust Co. De Camp v. Eveland V. Hibernia R. R. Co. 181, Decatur v. Fisher Decatur Co. v. Humphreys De ChasteUux v. Fairchild 59, 109, 113, Decker v. Baltimore, &c. R. B. Co. V. Gaylord Decorah v. Dunstan De Cordova v. Galveston Dedham v. Natick Deeds v. Sanborn De Giacomo, In re De Groff .*. St. Paul, &c. R. R. Co Dejarnette v. Commonwealth De Jarnette v. Haynes De Krafft v. Barney Delancey v. Insurance Co. Delano's Case Delaplaine v. Cook 451, Delegal v. Highley 550, Dells V. Kennedy Deloach v. Rogers Delmonico v. New York Delphi V. Evans 251, De Mill V Lookwood De Moss V. Newton Dempsey v. People Den V. Bolton V. Downam V. Dubois V. Schenck Denham v. Holeman Denison v. Hyde Denn v. Raid Dennett, Petitioner Dennick v. Railroad Co. Denning v. Corwin Dennis v. State Dennison School District v. Padden Denny v. Ashley V. Mattoon 127, V. Reynolds V. White Dent V. West Virginia 16, Denton v. Jackson 238, 268, Dentzel v. Waldie Denver v. Bayer V. Capelli V. Rhodes 256, V Vernia 251, Denver Circle R. Co. v. Nestor 182, Denver City Irrig. Co. v. Middaugh Denver & N. O. R. R. Co. v. Lamborn Denver & R. G. Ry. Co. ». Bourne V. Denver, &c. Co. Depew V. Board of Commissioners w. Trustees 38,730, De Pew V. Robinson Derby v. Derby 381, Page 700 241 758 151 726 148 220 653 804 649 128 18 532 244 455 414 617 828 3.30 396 197 422 487 411 452 551 757 780 30S 650 440 450 389 573 460 72 72 175 498 71 136 151 600 756 224 498 471 61» 215 437 295 464 690 255 308 690 690 703 698 690 686 727 7.32 520 495 Derby Turnpike Co. v. Parks De Saussure v. Gaillard Deskins v. Gose Des Moines v. Gilchrist Desmond v. Dunn Desnoyer v. Jordan Detmold i>. Drake Detroit v. Backus V. Beckman V. Blackeby V. Corey V. Daly V. Detroit & H. P. R. Co. Page 201 17 225 232 153 440 214,215 488 255, 256 303 302, 3U6 702 335, 336, 337, 711 222 662 20, 338 407 99, 748 V. Martin Detroit Free Press v. McArthur Detroit Ry. Co. a. Guthard Dettenhofer v. State De Turk a. Commonwealth De Varaigne v. Fox Devin v. Scott 719 Devlin v. Brady 166 Devon Witches, Case of 381 De Voss w. Richmond 270 Devoy v. New York 79, 220 Devries v. Conklin 75 V. Phillips 385 Dew V. Cunningham 167 Dewar v. People 38 Dewe V. Waterbury 533 Dewey v. Detroit 304 Dewhurst v. Allegheny 214, 479 De Wolf V. Rabaud 21 Dial V. Holter 532 Diamond Match Co. v. New Haven 646 Dibdin v. Swan 558 Dick V. McLaurin 603 Dickens's Case 410 Dickenson v. Fitchburg 700, 701 Dickerson v. Franklin 621 Dickey v. Hurlburt 779 i;. Reed 120 V. Tennison 653, 695 Dickinson v. Hayes 61 Dicks V. Hatch 491 Dickson v. Dickson 131, 151 V. People 749 DiefEendorf v. Ref . Cal. Church 573 Dietrichs v. Lincoln, &c. R. R. Co. 644 Diggins V. Brown 626 Dike V. State 484- Dikeman v. Dikeman 353 Dillard v. Collins 523 Dillingham i'. Hook 344 V. Snow 237, 640 V. State 391 Dimes v. Proprietors of Grand Junc- tion Canal 507, 509 Dingey v. Paxton 449, 453 Dingley v. Boston 656, 688 Directors, &c. v. Burton 224 Directors of the Poor v. School Di- rectors 598 Dishon v. Smith 235, 759, 774, 777, 783. 785 District Attorney, Re 749 xxxvm TABLE OF CASES. Page District of Columbia v. Washington Gas Light Co. 167 District Township v. Dubuque 70, 72, 80, 89 Ditson V. Ditsou 496, 496, 499 Dively v. Cedar Falls 269, 507 Divine v. Commissioners 153 Division of Howard Co. 168, 176, 228 Dixon w. Baker 256 V. Orr 783, 788 V. Parmelee 407 Dixon Co. V. Field 271 Dobbins v. Commissioners of Erie Co. 590, 591 V. State 400 Dobyns v. Weadon 779, 788 Dodd V. Thomas 436 Dodge V. CoflBn 28 V. County Commissioners 703 V. Gridley 182 V. Woolsey 18, 45, 148, 338 Doe V. Beebe 645 0. Braden 18 V. Douglass 37, 122, 201 V. McQuilkin 640 Dogge V. State 390 Dole V. Lyon 557 V. Van Rensselaer 541 Doles V. State 400 Dominick v. Bowdoin 134 Donahoe v. Richards 224, 577 Donahue v. Will Co. 134 Done V. People 401 Donkle v. Kohn 586 Donnaher's Case 671, 673 Donnell i'. State 734 Donnelly v. Decker 733 V. State 388 V. Tripp 257 Donnersberger v. Prendergast 173, 178, 210 Donoghue v. Philadelphia 293 Donohugh v. Roberts 181 Dooley v. Sullivan 803 Dooling V. Budget Pub. Co. 520 Doonan v. Glynn 63 Doran v. De Long 168 Dore V. Milwaukee 251 Dorgan v. Boston 614 Dorian v. East Brandy wine, &c. E. R. Co. 702 Dorlin v. Shearer 576 Dorman v. Jacksonville 251 Dorr, Ex parte 420, 422 Dorrance Street, Matter of 726 Dorsey, Matter of 79 V. Dorsey 114, 484, 495 V. Gilbert 122 Dorsey's Appeal , 176, 178 Dortic V. Lpckwdod 506 Doss V. Commonwealth 396 Dothage v. Stuart 478 Dotton V. Albion 304 Doud V. Mason City, &c. Ey. Co. 700 Dougherty v. Commonwealth 389 Doughty V. Hope 93, 496 Page Doughty t'. Somerville & Eastern R. R. Co. 698, 700, 702 Douglas V. Freeholders, &c. 71 Douglas Co. V. Bolles 270 Douglass V. Pike Co. 23, 346 V. Placerville 228, 233 V. Turnpike Co. 673 Dove V. School District 482 Dover v. Portsmouth Bridge 730 Dow V. Beidelman 15, 184, 737 V. Norris 201, 216, 219 Dow's Case 26 Dowdell V. State 183 Dowling V. State 327 Dowling's Case 390 Downing ». Porter 368 V. Wilson. 521 Downs !). Bowdoin Sq. Bapt. Soo. 573 Doyle V. Continental Ins. Co. 221 V. Hallam 61 V. O'Doherty 543 V. Raleigh 749 Drady v. Des Moines, &c. Co. 345 Drainage of Lands, Matter of 666 Draining Co. Case 628, 630 Drake v. Gilmore 456 V. Granger 27 V. Jordan 321, 327, 443 V. Phil., &c. E. E. Co. 714 Drath v. Burlington, &c. R. R. Co. 693 Drehman v. Stifle 316, 317, 351, 444 Drennan v. People 66 Dressen ti. Brameier 573 Drew V. Davis 639, 640 V. Hilliker 732 Dritt V. Snodgrass 225 Dronberger v. Reed 603 Druliner v. State 761 Drummond v. Leslie 621 Dryden v. Swinburne 780 Dryfuss v, Dridges 93 Duanesburgh :>. Jenkins 287 Dubois V. McLean 123 Dubuque Co. v. R. R. Co. 219, 273 Ducat V. Chicago 26 Duche V. Voisin 498 Duchess of Kingston's Case 60 Dudley v. Mayhew 491 Duffy V. Dubuque 264, 309 V. Hobson 693 Dugan V. HoUins 64 Duke V. Ashbee 773 V. Rome 266 Dulany's Lessee v. Tilghman 463 DuUam v. Willson 38, 134 Dunbar v. San Francisco 646 Duncan v. Barnett 349 V. Thwaites 551, 562, 569 Duncombe v. Daniell 630 V. Prindle 162, 175 Dunden v. Snodgrass 466 Dunham v, Chicago 634, 635 V. Cox 608 V. Hyde Park 251 V. Powers 642 v. Rochester 232, 241, 243, 244, 247 TABLE OF CASES. XXXIX Page Dunlap V. Glidden 542 V. State 472 V. Toledo, &c. Ry. Co. 444, 703 Dunman v. Bigg 524 Dunn V. Adams 35 V. Burleigh 490 V. City Council 665 V. Sargent 442 c. State 388 V. Winters 532 Dunne v. People 13 Dunnovan v. Green 269, 748 Du Page Co. «. Jenks 78 V. People 778 Dupy V. Wickwire 113 Durach's Appeal 227, 609, 633 Durant v. Essex Co. 65 V. Kauffman 606, 617 V. People 386 Durein v. Pontius 177 Durham v. Lewistown 113, 202, 483 Durkee v. JanesriUe .174, 484 V. Kenosha 257 Dusou V. Thompson 789 Duverge's Heirs v. Salter 181 Dwenger v. Chicago, &c. Ry. Co. 679 Dwyer v. Goran 61 Dyckman v. New York 501 Dye V. Cook 349 Dyer v. Bayne 72 V. Morris 520 V. State 188 t;. Tuscaloosa Bridge Co. 140, 488 Dykes, Ex parte 376 E. Eakin ». Raub 81 Barnes v. Savage 300, 436 V. Whittaker 633 Earle v. Board of Education V. Grant V. Picken Barley's Appeal Basley v. Morse Eason v. State East & West India Dock, &c. Co. v. Gattke East Brandywine, &c. R. R. Co. « Ranck Eastern R. R. Co. v. Boston, &c. R. R. Co. 339, 340 East Hartford v. Hartford Bridge Co. 260, 294, 333 East Kingston ». Towle 453 East Lincoln v. Davenport 271 Eastman v. Dearborn 498 v'. McAlpin 169 V. Meredith 255, 257, 295, 301 V. State 201, 745 East Norway Lake Ch. v. Froislie 573 East Oakland v. Sknmer 234, 270 Easton Bank v. Commonwealth 338 Bast Portland v. Multnomah Co. 610 East Saginaw Salt Manuf. Co. v. East Saginaw 337, 338, 343, 472 153 407 381 233 524 216 699 Page East St. Louis v. East St. Xouis, &c. Co. 262 V. Maxwell 182 o. O'Plynn 690 u. Trustees 609 V. Wehrang 249, 609 V. Witts . 286 East St. Louis Com. Ry. Co. v. East St. Louis, &c. Co. 686 Eaton, Matter of 423, 424 V. Boston, &c. R. R. Co. 646, 663, 667, 669, 671, 703 Echols V. State 785 V. Staunton 652 Eckhart v. State 210, 212 Eddings v. Seabrook 666, 663 Eddy V. Capron 166 Edgecombe v. Burlington 656 Edgerly v. Swain 619 Edgerton v. Hart 603 Edgewood R. R. Co.'s Appeal 652, 667 Edmonds v. Banbury 757 Edmundson v. Pittsburgh, &c. "R. R. Co. Edson V. Edson Edwards, In re V. Commonwealth V. Davenport V. Elliott V. Jagers V. James V. Johnson V. Kearzey V. Pope V. State V. Williamson Edwards's Lessee v. Darby Eells V. People Effinger v. Kenney Eggleston v. Doolittle 689, 690 27 378 134 22 30 335 93 363 347, 349, 354 122, 125 391 347 84 211, 213 352 573 Egyptian Levee Co. v. Hardin 614, 629, 733 Ehlers v. Stoeckle 436 Eichels v. Evansville, &o. Co. 232, 677 Eidemiller v. Wyandotte 650 Eifcenberry v. Edwards 606 Eimer v. Richards 61 Eitel V. State 162, 190 Elam V. Badger 524 Elbin V. Wilson 776 Elder v. Barnes 727 V. Reel 495 Eldridge, Matter of 411 V. Kuehl 449, 641 V. Smith 646, 653 Election Law, Matter of 772 Elgin V. Eaton 251 V. Kimball 256 Eliason v. Coleman 749 EUjah V. State 400 Eliot K. McCormick 498 Elizabethtown, & P. R. R. Co. v. Thompson 674 Elk V. Wilkins 753 Elk Point V. Vaugn 2-39 Ellett V. Commonwealth 344 Elliot V. Ailsbury 520 xl TABLE OF CASES. Page Elliott V. Fairhaven & Westville B. E. Co. 677 V. People 403 V. Pliiladelphia 257 V. Wohlfrom 496 Ellis V. Jones S47 «. Pacific R. E. Co. 049 V. State 383, 481 EUyson, Ex parte 785 Elmendorf w. Carmichael 115 V. New York 93 V. Taylor 21 Elmwood V. Marcy 80, 269 Else V. Smith 368 Elston V. Piggott 17, 161 Elwell V. Shaw 639, 640 Ely V. Holton 465 V. Niagara Co. 293, 742 V. Thompson 210, 220, 428 Embury v. Conner 196, 214, 215, 652, 665 Emerick v. Harris 505 Emerson v. Atwater 64, 66 Emery v. Gas Co. 614 V. Lowell 255 V. Mariaville 269 V. Reed 67 Emery's Case 161, 380 Empire City Bank, Matter of 496, 497 Emporia v. Soden 686, 687 Encking v. Simmons 87 Enfield v. Jordan 22 Enfield Toll Bridge Co. v. Hartford & N. H. R. E. Co. 339 Engle V. Shurtz 444, 469 English V. Chicot Co. 233 V. New Haven, &c. Co. 474 V. Oliver 162 Enos V. Chicago, &c. Ry. Co. 680 Ensign v. Barse 175, 463 Ensworth v. Albin ' 158, 757, 768 Entinck v. Carrington 367, 372 Epping !;. Robinson 502 Equator Co. v. Hall 22 Erber v. Dun 524 Erie Co. v. Com'rs Water Works 698 V. Erie 99, 598 Erie R. R. Co. v. Commonwealth 338 V. New Jersey 596 V. Pennsylvania 148 Erie & N. E. R. R. Co. v. Casey 125 Erlinger v. Boneau 139, 140, 146, 177 Ernst V. Kunkle 624 Ervine'sAppeal 109, 125, 126, 208, 430, 432 Escanaba Co. v. Chicago 38, 595, 731 Eshelman v. Chicago, &c. Ey. Co. 503, 505 Esmon v. State 401 Essex Co. V. Pacific Mills 85 Essex Witches, Case of 381 Este V. Strong 63 Estep V. Hutchman 122, 124 Estes V. Owen 616 Esty II. Westminster 281 Etheredge v. Osborn 60 Eufaula w. McNab 232 Eureka Basin, &c. Co., Matter of.654, 667 Eureka Springs Ey. Co. v. Timmons 85 Page Eustis V. Parker 266 Evans v. Brown 162 b. Montgomery 820, 347 i;. Myers 84 V. Osgood 236 V. Phillipi 77, 152 V. Populus 831 !'. Sharpe 176 Evansville v. State 134, 282, 748 Evansville, &c. E. E. Co. v. Dick 669 Evening News v. Tryon 562 Everett v. Council Bluffs 741 V. Marquette 742 Evergreen Cemetery v. New Haven 656 Everhart v. HoUoway 498 Evernham v. Hulit 169, 178, 182 Eviston V. Cramer 541 Ewing V. Filley 778, 786 V. Hoblitzelle 153, 173 1-. Orville M. Co. 100 ■0. School Directors 224 ■Excelsior Mfg. Co. v. Keyser 469 Exchange Bank i\ Hines 210, 607, 610 Express Printing Co. v. Copelanc i 541 Eyre v. Jacob 216 Ezekiel v. Dixon 70 Facey v. Fuller 501, 502 Fadness v. Braunborg 572, 573 Fahey v. State X70, 607 Fahr v. Hayes 624 Fair v. Philadelphia 255 Fairchild v. Adams 532, 640 V. Lynch 63 V. St. Louis 690 Fairfield v. Gallatin 22 V. McNany 61 V. Eatcliffe 614 Fairliurst v. Lewis 414 Fairman v. Ives 633, 660 Falconer v. Campbell 22,321 V. Robinson 182 Fales V. Wadsworth 461 Falk, Ex parte 97, 163 Fall V. Hazelrigg 66,85 Falvey, In re 161, 423 Fanning v. Gregorie 732 V. Krapfl 602 Fargo V. Michigan 696 Faribault ii. Misener 84 Farley v. Dowe 349 Farmers' & Mechanics' Bank v Sutch- ers' & Drovers' Bank 270, 271 ■u. Smith 84, 216, 366 Farney v. Towle 20 Farnham v. Pierce 363 Farnsworth v. Storrs 532 V. Vance 354 Farnsworth Co. v. Lisbon 137, 632 Farnum v. Concord 301 V. Johnson 1.39 Farr v. Rasco 557 V. Sherman 75 TABLE OF CASES. xU Farrar v. Clark V. St. Louis Farrington v. Tennessee V. Turner Fausler v. Parsons Fawcett v. Charles V. Clark 0. Fowllss Page 449 614, 624 338, 631 779 758 550 619 501, 602 0. York & North Midland R. R, Co. 713 Fayetteville v. Carter 243 Fearing v. Irwin 473, 666 Fechheimer v. Washington 35 Fehr v. Schuylkill Nav. Co. 708 Feibleman v. State 79, 172 Feige v. Mich. Cent. R. R. Co. 115 Feineman v. Sachs 160 Feldman v. City CouncU 268, 601 Felix V. Sehwarnweber 20 Fell V. State 142, 146, 341 Fellows V. New Haven 251 V. Walker 601 Felton's Case 380 Fenelon v. Butts 777 Fennell o. Bay City 240 Fenton v. Garlick 27, 498 V. Scott 764. 789 V. Yule 172 Fenwick v. Gill 478 Ferguson v. Landram 281, 479, 599, 606 V. Selma 742 u. Williams 463 Fernandez, Ex parte 423 Fernstler v. Siebert 573 Ferraria v. Vasconcellos 572, 573 Ferrell v. Commonwealth 150 FerreUe, In re 26 Ferrenbach v. Turner 740 Ferris v. Bramble 653 Fertich v. Michener 225 Fertilizing Co. v. Hyde Park 341, 721, 741, 742 Fetter, Matter of 25 Field V. Des Moines 283, 646 ». Gibbs 27 V. People 78, 135 Fields V. Highland Co. Com. 200, 635 Fifleld V. Close 592 Filber y Dauhterman 519 Finney v. Boyd 61 Fire Department v. Helfenstein 25, 609 V. Noble 25 V. Wright 25 , Firemen's Association v. Lounsbury 174, 175 First National Bank v. Merchants' National Bank 371 V. Price 151 First Parish, &c. v. Middlesex 700, 702 V. Stearns 748, 780, 781 First Pres. Soc, Matter of 573 First Ref. Pres. Ch. v. Bowden 572 Fischli V. Cowan 61 Fish V. CoUens 780 V. Kenosha , 272 Fisher v. Boston ' 254 Page Fisher v. Deering 66 V. Haldeman 21 V. Hildreth 773 V. Horricon Co. 658 V. McGirr T»; _i i_T .-M 210, 369, 719, 740 Fisher's Lessee v. Cockerell 20 Fisher's Negroes v. Dobbs 456 Fishkill B. Fishkill & Beekman Plank Road Co. 174 Fisk, Ex parte 424 V. Jefferson Police Jury 45, 328, 332 V. Kenosha 468 V. Soniat 531 Fiske V. Framingham Manuf. Co. 658 V. Hazzard 275 Fitchburg R. R. Co. v. Grand Junc- tion R. R. Co. 709, 714 Fitzgerald v. Robinson 573 V. St. Paul, &c. Ry. Co. 713 Flagg V. Baldwin 35, 150 V. Worcester 254 Flaherty v. McCormick 505 Flanagan v. Philadelphia 732 V. Plainfield 609 Flatbush, In re 175, 615 Fleischner v. Chadwick 181, 182 Fleishman v. Walker 492 Fleming, Ex parte 135 Fletcher v. Auburn & Syracuse R. R. Co. 692 V. Baxter 161 V. Ferrel 28 K. Fletcher 705 V. Lord Somers 64 V. Oliver 78, 170, 610 V. Peck 106, 202, 217, 316, 320, 329, 691 V. State 385 Flint V. Pike 550, 551, 553 Flint, &c. Plank Road Co. v. Wood- hull 114, 125, 221 Flint, &c. R. R. Co. w. Dewey 224 Flint River Steamboat Co. v. Foster 200, 216, 505 Flood V. State 239 Florence, Ex parte 70 Florentine v. Barton 120, 122 Flournoy v. Jeffersonville 504 Flower v. Flower 495, 499 Floyd V. Mintsey 68 Fogg V. Holcomb 465 Foley V. People 376 V. State 175, 179* Folkenson v. Easton 77 Folsom V. New Orleans 293 Foltz V. Kerlin 749 V. State 725 Foote V. Fire Department 740 B. State 403 Forbes v. Halsey 452 B. Johnson 532, 543 Ford V. Chicago & N.W. R. R. Co. 663, 674 V. County Commissioners 686 Fordyce v. Godman 162 Foreman v. Hardwick 773 B. Marianna 508 Forepaugh v. Del. L. & W. R. R. Co. 151 xlii TABLE OF CASES. Page Porster v. Forster 113, 456 Fort Dodge v. District Township 775 Fort Leavenworth B. R. Co. v. Lowe 149 Fort Scott V. Pelton 597 Fort Wayne v. Coombs 256 Fort Worth v. Crawford 254 Forward v. Hampshire, &c. Canal Co. 647 Fosdick V. Perrysburg 183 Foss V. Foss 494 V. Iliidreth 568 Foster v. Byrne 349 V. Essex Bank 216, 356, 442, 464 V. Kansas 718 0. Kenosha 636 V. Morse 506 v.. Neilson 18 V. Scarfl 759, 775 V. Scripps 541 V. St. Louis 255 Foule V. Mann 436, 439 Fowler, Matter of 663 V. Beebe 752, 777 V. Chichester 557 V. Danvers 278 V. Halbert 477 V. Pierce 184 V. State 778, 782 Fowles V. Bowen 524 Fox, Ex parte 364 V. Cottage, &c. Ass. 503 V. State of Ohio 29, 241 u. W. P. Railroad Co. 691 V. Wood 161 Foxcrof t V. Mallett 21 Foye V. Patch 63 Frain v. State 382 Francis v. Railroad Co. 607, 634 V. Wood 543 Francois, Ex parte 481 Frank, Ex parte 246, 609 Frankfort v. Aughe 240, 720 V. Winterport 166, 261 Frankfort, &c. R. Co. v. Philadelphia 244 Frankland v. Cassaday 61 Franklin v. Browne 520 V. State 410 Franklin Bridge Co. v. Wood 202, 216 Franklin Co. v. Railroad 607 .Franz k. Railroad Co. 680 Frary v. Frary 494 Frasher v. State 481 Frazee, Matter of 246 V. Beattie 505 Frazer v. Lewiston 301 Free v. Buckingham 586 Freeborn v. Pettibone 853 Freedman v. Sigel 592, 693 Free Fishers' Co. v. Gann 642 Freeholders v. Sussex 255 Freeholders, &c. v. Barber 242 Freeland v. Hastings 207, 262, 281, 599, V. Williams Freeman v. Alderson V. Gaither V. Price 16, 351 498 188 521 Page Freeport v. Isbell 254 V. Marks 258 Frees v. Ford 196 Freeze v. Tripp 66 Freleigh v. State 341 Frellsen v. Mahan 630 French v. Boston 255 V, Braintree Manuf. Co. 657 V. Camp 728 V. Commonwealth 331 V. Edwards 92 V. Kirkland 628 V. Nolan 780 Firetwell v. Troy 244 Friedman v. Mathes 99 Friend v. HamiU 776 Frink v. Darst 64 Frisbie v. Fowler 520 Frith V. Dubuque 254 Fritts V. Palmer 151 Frolickstein v. Mobile 585 725 Frommer i;. Richmond 244 Frost V. Belmont 164, 228 260 Fry V. Bennett 558 V. Booth 93, 778 779 V. State 712, 746 Fry's Election Case 754, 755 756 Fryer v. Kinnersley 524 Fuller V. Chicago, &o. E. K. Co. 737 V. Dame 164, 165 V. Edings 666 V. Gould 610 V. Groton 259 V. Hampton 299 :;. Morrison Co. 283 V. People 173 Fullerton v. Bank of United States 21 Fulmer v. Commonwealth 73 Fulton V. Davenport 616 V. McAfEee 20 Furgeson v. Jones 501 Furman v. New York 70 V. Nichol 344 Furman Street, Matter of 614, 667, 699 Fumell V. St. Paul 309 Furniss o. Hudson River R. R. Cp. 696 G. Gabbert v. Railroad Co. 174 Gabel v. Houston 244 Gaff V. Greer 573 Gage V. Caraher 452, 640 V. Censors 745 V. Graham 286, 288 V. Shelton 519 Gagnet v. Reese 425 Gaines v. Buford 475 V. Coates 485, 487, 744 V. Gaines 181 Gale, Matter of 411 V. Kalamazoo 485, 721, 744 V. Mead 93 M. South Berwick 261 Galen v. Clyde & Rose Plank Road Co. 301 TABLE OF CASES. xliii Page Page Galena & Chicago Union E. E. Co. v. Gentile v. State 153, 732 Appleby 709, 715 Gentry v. Griffith 160, 205 V. Dill 714 George v. George 725 V. Loomis 709, 714 V. Gillespie 61 Galesburg v. Hawkinson 119 228 V. Oxford 188, 269 Gall V. Cincinnati 744 Georgetown, &c. E. E. Co. v. Eagles 669 Gallatin v. Bradford 241 246 Georgia v. Stanton 3 Galveston v. Posnainsky 302 Georgia, &c. E. E. Co. v. Harris 491, 493 Gammel v. Potter 659 Georgia Pen. Cos. v. Nelms 330 Gannett v. Leonard 122 Georgia E. E., &c. Co. v. Smith 138, 737 Gannon, Inre 705 Gerard v. People 399 V. People 400 Gerhard b. Seekonk, &e. Co. 671 Gantly's Lessee v. Ewing 352 German, &c. Cong. v. Pressler 572 Garbett, Ex parte 411 Germania Ins. Co. v. Wisconsin 20 Garcia v. Lee 18 German Beformed Church v. Seibert 573 V. Territory 403 German Savings Bank v. Franklin Co. 22 Gardiner o. Johnston 251 Gerrish v. Brown 727 Gardner v. Collins 21 Gerry v. Stoneham 455 V. Hope Ins. Co. 337 Gertum v. Board 332 V. Newburg 646, 656, 686, 687 ,692 Gettys V. Gettys 495 V. The Collector 162 Gibb 0. Washington 752 V. Ward 776 Gibbons u. Dist. Columbia 632 Q,w\a.nA, Ex parte 316, 317, 320 ,821 V. Mobile, &c. E. E. Co. 140, 467 V. Brown's Adm'r 847 V. Ogden 10, 11, 73, 729 Garner v. Gordon 425 V. United States 18 Garnett v. Jacksonyille 672 Gibbs B. Gale 451 Garr v. Selden 542 ,546 Giboney v. Cape Girardeau ' 617 Garrett v. Beaumont 455 Gibson, Ex parte 427 V. Cordell 351 V. Armstrong 573 V. Doe 455 u. Choteau 20, 450 V. Janes 248 u. Emerson 107 V. State 721 o. Hibbard 464 V. St. Louis 623 V. Lyon 22 Garrigas v. Board of Com'rs 169 ,175 V. Mason 435, 747 Garrigus v. State 389 V. School District 224 Garrison v. Hollins 606 Giesy b. Cincinnati, W. & Z. E. E. Co. 666, 1^. New York 304 687, 702 V. Tillinghast 595 GifEord v. People 385 Gartin v. Penick 573 B. Eailroad Co. 176 Harvey, In re 378 GU V. Davis 166 V. People 326 Gilbert v. People 544, 546, 560 Garvey's Case 400 Gildersleeve v. People 497 Garvin v. State 174 GilflUan b. Union Canal Co. 348 Gas Co. V. Parkersburg 252 Gilkeson v. Frederick Justices 227 V. San Franciseo 306 Gilkey v. Cook 77 V. Wheeling 72 Gill B. Parker 718 Gascoigne v. Ambler 520 Gillespie b. Palmer 748, 776, 779 Gaskill V. Dudley 300 V. State 175, 179 Gass V. Wilhite 572 •Gillett w. McCarthy 177 Gassett u. Gilbert 524 Gillette b. Hartford 621 Gaston v. Mace 727 GilUland b. Phillips 462 V. Merriam 182 V. Sellers's Adm'r 491 Gatch V. Des Moines 617 Gillinwater o. Mississippi & Atlantic Gates V. Neal 776 E. E. Co. 55, 99, 649, 650 Gatheroole v. Miall 538 558 Gillison v. Charleston 309 Gatlin v. Tarboro 607 Gilluly B. Madison 256 Gaulden v. State 411 Gilman v. Cutts 439 Geary v. Simmons 61 V. Lockwood 357 Gebhard v. Eailroad Co. 444 V. Lowell 619 Gebhardt v. Eeeves 679 688 B.Philadelphia 11,595,722,725,729 Gee V. Williamson 61 V. Sheboygan 338 Geebrick v. State 137, 144 146 V. Williams 215 Gehling u. School District 224 Gilmer v. T,ime Point 645, 651, 662, 693, Gelpcke V. Dubuque 23, 140, 270 272 694 Genet v. Brooklyn 702 Gilmore v. Heutig 617 Genther v. Fuller 641 Gilson B. Dayton 271 xliv TABLE OF CASES. Page Ginn v. Rogers 491 Girard v. Pliiladelphia ii29 Girard Will Case 5S0 Girdner v. Stephens 45, 448 Gladden v. State 388 Gleason v. Dodd 27, 498 V. Gleason 495 ti. Keteltas 506 Glidewell v. Martin 163 Gloucester Ferry Co. ti. Pennsylvania 596, 723, 732 Gloucester Ins. Co. v. Younger 23 Glover v. Powell 671, 728 V. Taylor 773 Godcharles v. Wigeman 199, 483 Goddard, Petitioner 239, 241, 245, 726 t>. Jacksonville 716, 742 Goddin v. Crump 140, 220 Godslialk v. Metzgar 550 Goenen v. Sehroeder 350 Goetcheus v. Mathewson 496, 776 Goff V. Frederick 228 Goggans v. Turnispeed 345 Gohen v. Texas Pacific E. R. Co. 182 Gold v. Fite 71 Goldthwaite v. Montgomery 227 Gold Water & Washing Co. v. Keyes 19 Gonell V. Bier 749 Good 1). Zereher 463 Goodell, Matter of 480 V Jackson 64 Goodenough, Jn re 426 Goodhue, Re 201 Goodin v. Thoman 79, 332 Goodlett V. Kelly 451 Goodman v. Munks 448 u. State 387 Goodrel v. Ereichbaum 17 Goodrich v. Detroit 234 V. Winchester, &c. Co. 614 Goodsell V. Boynton 188 Goodtitle v. Kibbee 645 V. Otway 64 Goodwin v. Thompson 35 Goodwin, &c. Co.'s Appeal 407 Gordon v. Appeal Tax Court 148, 338 V. Building Association 484, 486 V. Caldcleugh 20 V. Cornes 284, 285, 605 V. Farrar 776 V. Ingraham 109 V. People 181 u. Preston 236 Gore V. State 389 Gorham v. Campbell 778 0. Cooperstown 309 V. Luckett 389 V. Springfield 139 Gorman v. Pacific E. R. Co. 337, 713 Gormley v. Taylor 216 Goshen v. Kern 244, 609 V. Richmond 473 V. Stonington 200, 459, 465 Goshorn v. Purcell 456, 462, 463 Goslin V. Cannon 525, 543 Gosling i: Veley 241, 780 Page Gosnell v. State 745 Gosselink v. Campbell 245, 726 Gosset V. Howard 159 Gossigi V. New Orleans 244, 744 Goszler v. Georgetown 250, 667 Gott V. Pulsifer 561 Gottbehuet v. Hubacliek 520, 641 Gottschalk v. Chicago, &c. R. R. Co. 690 Gough V. Dorsey 107, 604 V. Pratt 112 Gould V. Hudson River R. R. Co. 666, 670 «. Sterling 234, 269, 271, 467 V. Topeka 255 Goulding v. Clark 235 Govan v. Jackson 782 Gove V. Blethen 541 V. Epping 275, 606 Governor v. Porter 57, 113 Grace v. McElroy 66 V. Teague 751 GrafEty v. Rushville 597 Graham, Ex parte 455 V. Com'rs Chautauqua Co. 608 V. Greenville 139 Grammar School v. Burt 335 Granby v. Thurston 228 Grand Gulf R. R. Co. v. Buck 338 Grand Rapids v. Hughes 232 V. Perkins 695 Grand Rapids, &c. R. R. Co. v. Heisel 669, 681 V. Weiden 649 Grand Rapids Booming Co. v. Jarvis 670 Granger v. Pulaski Co. 295, 301 Grannahan v. Hannibal, &c. R. R. Co. 709, 715 Grant v. Brooklyn 308 V. Courier 205 u. Erie 254 V. Leach 488 V. Spencer 93 Grattan v. Mattison 504 Graves v. Blanchet 620 V. Nor. Pac. R. R, Co. 605 V. Otis 251, 667 Gray v. Danbury 309 v.. First Division, &c. 674 V. Hook 773 V. Knoxville 256 V. Navigation Co. 337 V. Pentland 631, 532 V. State 486 Gray's Lessee v. Askew 66 Great Falls Manufacturing Co. v. Fernald 659 V. Garland 692 Great Western R. R. Co. v. Decatur 712 Greeley v. Jacksonville 182 Green v. Aker 100 V. Biddle 330 V. Chapman 658 V. Collins 491 V. Creighton 492 V. Custard 498 V. Holway 593 TABLE OF CASES. xlv Page Green v. Hotaling 698 V. Mayor, &o. 175 V. Neal's Lessee 21,22 V. Portland 681 V. Reading 251, 667 V. Sarmiento 27 V. Savannah 721 V. Shumway 753 V. State 17, 481, 667, 733 V. Swift 667, 733 V. Telfair 568 V. Van Buskirk 28 u. "Weller 72, 73, 162 Greencastle, &c. Co. v. State 67, 182 Greencastle Township v. Black 71, 72, 73, 87, 94, Greene v. Briggs 869, 430, 505 Greenfield v. Dorris 353 Greenlaw v. Greenlaw 494 Greenough v. Greenough 107, 108, 109, 112, 125, 465 Greensboro' v. Ehrenreich 246 V. MuUins 240 Greenville & Columbia R. R. Co. v. Partlow 701, 702 Greenwood v. Cobbey 532 u. Curtis 150 V. Freight Co. 336 V. Louisville 254 V. State 240 Gregory, Ex parte 243, 609 V. Bridgeport 259 V. Denver Bank 348 0. Gregory 495 V. State 110 Grenada Co. Supervisors v Brogden 219 Gridley v. Bloomington 245, 726 Grier v. Shackleford 785 Griffin v. Cunningham 484 V. Martin 671 V. McKenzie 449 V. Mixon 444 V. New York 253 V. Ranney 593 V. "Wilcox 350, 444, 445 V. Williamstown 309 G.-iffin's Case 15 Griffin's Executor v. Cunningham 114, 128, 471 Griffing v. Gibb 22 Griffiths, In re 107 Griggs V. Foote 251 Grills V. Jonesboro' 244 Grim v. Weissenburg School District 460, 602 Grimes v. Coyle 525, 533, 543 V. Doe 462 Grimmett v. State 379 Griswold v. Bragg 478 V. School District 611 Grob V. Cushman 163 Groesbeck v. Seeley 449, 453 Groesch v. State 146 Groffs, In re 210 Grogan v. San Francisco 293, 330 V. State 399 Page Groome v. Gwinn 136 Gross V. Rice 403 V. U. S. Mortgage Co. 20, 462 Grosvenor v. Chesley 346 V. United Society 573 Grove v. Brandenburg 542 V. Todd 463 Grover v. Huckins 447 V. Trustees Ocean Grove 179 Grubb V. Bullock 134 Grubbs v. State 178 Grube v. St. Paul 257 Grumbine v. Washington 257, 308 Grundy v. Commonwealth 442 Guard v. Rowan 455 Gubasko !'. New York 309 Guenther v. People 401 Guerin v. Moore 441 Guerrero, In re 249, 508, 609 Guetig I'. State 375 Guild V. Rogers 346, 349 Guile V. Brown 505 Guilford v. Cornell 174 V. Supervisors of Chenango 260, 279, 283, 287, 334, 468, 603 Guillotte V. New Orleans 245, 744 Guiterrez, Ex parte 328 Gulf, C. & S. F. Ry. Co. v. FuUer 690 V. Rambolt 72 V. State 737 Gulick V. New 780 V. Ward 164 Gulline v. Lowell 687 Gumm V. Hubbard 766 Gunn V. Barry 45, 46, 347, 349 Gunnarssohn v. Sterling 146 Gunter v. Dale Co. 173 Gurnee v. Chicago 615 V. Speer 344, 348 Gut V. State 327, 391 Gutman v. Virginia Iron Co. 201 Guy V. Baltimore 597 H. Haas V. Chicago, &c. R. R. Co. 712, 714 Habersham v. State 396 Hackett, In re 434, 504, 639 V. Wilson 489 Hackettstown v. Swackhamer 232 Hackney v. Vawter 573 V. Welsh 27 Hadden v. Chorn 573 V. The Collector 169 Hadduck's Case 237 Hadley v. Mayor, &c. 784, 787 Hadsell v. Hancock 259 Hafford v. New Bedford 254 Hagan v. Hendry 570 Hagany v. Cohnen 505 Hagar v. Reclamation Dist. 617 V. Supervisors of Yolo 628 Hagerstown v. Dechert 210, 211, 213 V. Schuer 228 Haggard v. Hawkins 175 xlvi TABLE OF CASES. Page Page Hagge V. State 783 Hampton v. McConnel 28 Hagood V. Southern 17 V. Wilson 567 Hahn v. United States 86 Hamrick v. Rouse 149 Haight V. Grist 593 Hancock, Matter of 507 V. Lucia 389 V. State 378 Haines v. Hall 727 Hand v. Ballou 452 V. Levin 506 Hand Gold Mining Co. v. Packer 657 - V. School District 236 Handy v. Chatfield 350, 355 Haines's Appeal .506 V. State 396 Hair v. State 388 1). St. Paul, &c. Pub. Co. 725 Haialip v. Wilmington, &c. E. K Co. 701 Haney v. Marshall 25 Hakewell, Matter of 426 Hanger v. Des Moines 261 V. Ingram 568 Hang Kie, Jn re 245 Halbert v. Sparks 224 Hankins v. Lawrence 659 Hale V. Everett 48, 78, 572, 574 676, 580 B. People 240 V. Kenosha 615, 633 Hanlin v. Chicago, &c. By. Co. 674 V. Lawrence 739 Hanlon v. Doherty 407 V. Wilkinson 593 Hannel v. Smith 67 Haley v. Clarke 135 Hannibal v. Richards 742 V. Philadelphia 112, 455 Hannon v. Grizzard 748, 754 17. Taylor 415 V. St. Louis Co. Court 801 Hall, In re 183 Hanofi V. State 385 V. Bray 152 Hanover v. Turner 494, 496 V. Bunte 173 Hanscom v. Boston 309 V. De Cuir 490 712, 740 Hansen v. Vernon 599 V. Gavitt 773 Hapgood V. Doherty 505 V. Marks 504 V. Whitman 455 V. Marshall 140, 774 Happel V. Brethauer 163 V. Steele 163, 167 Happy V. Morton 572 V. Thayer 508, 509 V. Mosher 497 V. Washington Co. 406 Harhaugh v. Cicott 756 771, 781 V. Williams 27, 498 Harbeck v. New York 220 V. Wisconsin 330, 333 Harbor Com'rs v. Pashley 596 Hallock V. Franklin Co. 696 Hard v. Burton 504 V. Miller 521 V. Nearing 438, 484 Halstead v. Nelson 533 Hardeman v. Downer 348 V. New York 231, 260 262, 271 Harden v. Cumstock 546 Ham V. McClaws 198 Hardenburg v. Lockwood 671 V. Salem 656 Hardin v. Baptist Ch. 572 2). Smith 778 Harding, Ex parte 424 V. State 26 „. Alden 495 499, 500 11. Wisconsin, &c. Ky. Co. 700 «. Funk 659, 700 Hamersley w. New York 692 V. Goodlet 658, 661 Hamilton, Ex parte 425 V. Rockford, &c. R. R. Co. 269 V. Carthage 310 V. Stamford Water Co. 671 V. Eno 541 Hardwick v. Pawlet 414 V. Hirsch 442 Hardy v. Atchison, &c. R. R. Co 737 V. Kneeland 35 V. Brooklyn 256 V. People 396 Hare v. Hare 495 V. State 150, 184 V. Kennerly 636 V. St. Louis County Court 49,80 V. Mellor 532 V. Vicksburg, &c. R. R. Co. 38, 668, Harlan v. People 29 729, 731 Harman v. Harwood 184 Hamilton Co. v. Massachusetts 20 V. Lynchburg 267 V. Mighels 295 Harmon ». Auditor 63 Hamlet v. Taylor 187 V. Chicago 742 Hamlin v. Mack 435 V. Dreher 573 V. Meadville 233, 269 V. Omaha 251, 690 Hammett v. Philadelphia 841, 605, 614, V. Wallace 352 615, 624 Harmony v. Mitchell 739 Hammond v. Anderson 64 Harp V. Osgood 415, 416 V. Haines 145 Harpending v. Haight 136, 185 e. People 424 V. Reformed Church 21 V. Wjlcher 746 Harper v. Commissioners 435 Hampshire v. Franklin 230 V. Richardson 692, 693 Hampton v. Coffin 696 f. Rowe 471 TABLE OF CASES. xlvii Earrigan v. Lumber Co. Harriman v. Baptist Church V. Boston Harrington v. County Com'rs V. Miles «. State Harris v. Austell V. Colquit V. Dennie V. Harris V. Huntington V. Inhabitants of Marblehead V. McClanahan V. Morris V. People V. Koof V. Kutledge V. Terry Harris Co. v. Boyd Harrison v. Baltimore V. Bridgeton V. Bush V. Harrison u. Leach V. Metz 782 673 309 696 619 398 349 61 20 60 532 478 501 413 175, 390 165 464 520 698 721 229, 280, 292 623, 625, 560 496, 499 75 466 V. New Orleans, &c. Ey. Co. 681 V. Sager 66 V. Stacy 448 71. State 202 V. Supervisors 171, 176 V. Willis 443 Harrison Justices v. Holland 228 Harrow v. Myers 67 Hart V. Albany 248, 706, 739 V. Bostwick 450 V. Bridgeport 2-57 „. Brooklyn 304, 726 V. Evans ' 768 V. Henderson 453 V. Holden 279 V. Jewett 61 V. State 327 V. Von Gumpach 542 Harteau v. Harteau 496 Hartford v. State 520 Hartford Bridge Co. v. Union Ferry Co. 201, 216 Hartford Fire Ins. Co. v. Reynolds 407 Hartland v. Church 615 Hartman, Rx parte 423 V. Aveline _, „„„ 25 V. Greenhow 65, 330, 344 Hartranft's Appeal 136 Hartt V. Harvey '°*' Hartung «. People . 403,443,469 Harvey v. Com'rs Rush Co. ooZ V. Farnie „ 496 V. Lackawanna R. R. Co. 666, 668, 700 V. Tama Co. „ 773 V. Thomas 202, 436, 653 Harward v. St. Clair, &c. Drainage Co. 468 Harwood v. Astley 537 ». Bloomington ^, „„, ;"2 Hasbrouck v. Milwaukee 264» 284, 285, 467 V. Shipman 354 Haskel v. Burlington 479 Page Haskell v. New Bedford 196, 215, 666 Hastings v. Lane 466 V. Lusk 546 Hastings & G. I. R. R. Co. v. Ingalls 684 Haswell's Case 526 Hatch V. Lane 524, 525 • u. Stoneman 136 1 V. Vermont Central R. R. Co. 667, 686, 703 Hatcher v. State 480 V. Toledo, &c. R. R. Co. 455 Hatcheson v. Tilder 780 Hatchett v. Mount Pleasant Ch. 573 Hatfield v. Commonwealth 150 Hathaway v. New Baltimore 176 Hatheway v. Sackett 225, 229 Hathon v. Lyon 440 Hatzfield v. Gulden 166 Hauenstein b. Lynham 18 Hausenfluck v. Commonwealth 374 Havard v. Day 639 Haverhill Bridge Props, v. Coimty Commissioners 692 Haverly I. M. Co. v. Howcutt 504 Hawbeoker v. Hawbecker 70 Hawes v. Miller 764, 774 Hawk V. Marion Co. 261 Hawkins v. Barney's Lessee 330 u. Carrol 71 u. Commonwealth 228 V. Governor 108, 136 V. Jones 61 V. Lumsden 557 V. Ragsdale 499 Hawthorn v. People 743 Hawthorne v. Calef 335, 348; 366 Hay V. Cohoes Company 659, 669 Hayden v. Foster 640 V. Goodnow 227 V. Noyes 241, 246, 247 Hayes v. Appleton 244 V. Holly Springs 271 V. Missouri 16. 391 V. Press. Co. 550 V. Reese 60 Haynes v. Burlington 646 V. Thomas 669 Hays V. Brierly 568 V. Risher 663 Haywood v. Savannah 239 Hazen v. Essex Company 658 !). Lerche 224 Head «. Amoskeag Co. 659 V. Daniels 503 V. Providence, &c. R. R. Co. 272 Head Money Cases 18, 594, 709, 724 Heard v. Brooklyn 679 V. Heard 188 Hearn v. Brogan 182 Heath, Ex parte 93, 775, 778, 782, 783 Heather Children, Matter of 426 Hector v. State 382, 400 Hedderioh v. State 716 Hedgecock v. Davis 84 Hedges v. Madison Co. 801 Hedley v, Com'rs of Franklin Co. 216 xlviii TABLE OF CASES. Hegarty's Appeal 120, 125 Hegeman v. Western R. R. Co. 709, 710 HeilbroD, Ex parte 246 Hein v. Davidson 436 Heinlein v. Martin 61 Heiss V. Milwaukee, &o. Ry. Co. 674 Heldt V. State 383, 386 Helena v. Gray 243 V. Thompson 309 Heller v. Atchison, &c. R. R. Co. 473 V. Sedalia 254 Helverstine v. Yantes 605 Hendershot v. State 695 Hendershott v. Ottumwa 251 Henderson v. GrifSn 21 V. Lambert 621 B. Minneapolis 667, 669 ,..New York 595 V. Oliver 640 Henderson's Distilled Spirits 367, 639 Henderson's Tobacco 182 Hendrick's Case 29 Hendrickson v. Deeow 573 V. Hendrickson 188, 189, 221 Henisler o. Freedman 871 Henke v. McCord 222 Henkel v. Detroit . 266 Henley v. Lyme Regis 802, 307 Hennersdorf v. State 725 Hennepin Co. v. Bartleson 726 Hennessy v. St. Paul , 742 Henry v. Chester 634 V. Deitrich 573 V. Dubuque & Pacific R. R. Co. 687, .694, 699 V. Henry 175, 349 V. Tilson 80 Henshaw v. Foster 101, 761 Hensley v. Force 27 Hensley Township v. People 605 Hensoldt v. Petersburg 162 Henson v. Moore 441 Henwood v. Harrison 641, 661, 662 Hepburn v. Curts 442, 460 Hepburn's Case ' 652 Herber v. State 324 Herdic v. Roessler 12 Herrick v. Randolph 338, 588 Herrington v. Lansingburgh, 308 Hersey v. Supervisors of Milwaukee 6-34, 640 Hershfield v. State 398 Hershizer v. Florence 441, 442 Hess V. Johnson 351 V. Pegg 66, 152, 228 V. Werts 461 Hessler v. Drainage Cora'rs 468 Heth V. Fond du Lao 256 Hewison ». New Haven 256, 293, 306 Hewitt V. Normal School District 224 V. Prince 407 Hewitt's Appeal 617 Heydenfeldt v. Towns 509 Heyfron, Ex parte. 498 Hey Sing Jeck ». Anderson 370 Heyward, Matter of 26 Heyward v. Judd 846, 353 V. New York 197, 214, 644, 682, 688 Hibbard v. People 369, 719 Hibernia R. R. Co. v. Camp 661 Hickerson v. Benson 773 Hickey v. Hinsdale 93 Hickie v. Starke 20 Hickman's Case 653 Hickok V. Plattsburg 303 Hickox V.' Tallman 451, 462 Hicks V. Steigleman 448 Higert v. Green Castle 309 Higginbotham v. State 387 Higging V. Chicago 696 V. Farmer's Ins. Co. 38, 505 V. Lime 594 High I). Shoemaker 435 High's Case 754 Hightstown v, Glenn 163 Highway Com. v. Ely 254 V. Martin 255 Hilands v. Commonwealth 400 Hilbish V. Catherman 281 Hildreth v. Lowell 656, 726 V. Mclntyre 762 Bi\l, Ex parte 422 V. Boston 255, 257, 302 V. Boyland 97 V. Charlotte 2-54 V. Commissioners . 175 V. Higdon 614, 623, 624, 627, 633, 637 V. Hill 785 V. Kessler 349 V. Kricke 449 V. Miles 532 W.Morse 61 V. People 390, 391, 492 V. Pride • 500 V. Spear 719 0. State 186, 188 V. Sunderland 114 V. Wells 508 Hill's Case 388 Hillebert v. Porter 35.3 Hilliard v. Connelly 114 V. Miller 465 V. Moore 352 Hills V. Chicago 81, 99, 100, 200 Himman v. Warren 37 Himmelman v. Carpentier 451 Hinchman i'. Paterson Horse R. R. Co. 682, 684, 685, 732 V. Town 493 Hinckley v. Somerset 304 Hind V. Rice , 176 Hinde v. Vattier " 21 Hindman v. Piper 125 Hines v. Charlotte 253 V. Leavenworth 614, 624 V. Lockport 266, 309 Hingham, &o. Turnpike Co. v. Nor- folk Co. 197 Hingle v. State 170, 171 Hinkle, In re 761 Hinman ti. Chicago, &c. R. R. Co. 714 Hinson v. Lott 596 TABLE OF CASES. xlix 1-r. ^'B^ Hmton V. State 373 Hipp V. Charlevoix Co. Superv. 785 Hirn v. State 182,>341 Hiss V. Bartlett I59 V. Railway Co. 683 Hoag V. Hatch 519 V. Switzer 668 Hoagland v. Creed 504 Hoar V. Wood 545, 546, 560 Hoare v. Silverlocke 550 Hobart v. Supervisors, &c. 139, 140, 202 Hobbs & Johnson, Ex rel. 481 Hoboken v. Phinney 636 Hodge V. Linn 763, 778 Hodges V. Bait. Pass. Ry. Co. 677 V. Buffalo 231, 261 Hodgkins v. Rockport 225 Hodgson V. Milward 444, 445 V. New Orleans 609 V. Scarlett 545 Hoffman v. HofEman 27, 495, 496 d. Locke ' 506 V. State 899, 400 Hoge V. Railway Co. 838 "Bogs, Ex parte. 176 V. Zanesville Canal Manuf. Co. 37, 732 Hoggatt V. Vicksburg, &c. R. R. Co. 684 Hoglan V. Carpenter 749 Hoisington v. Hough 215 Hoke V. Henderson 432 Holbrook i'. Finney 440 V. Murray 27 Holden v. James 201, 448, 482, 483 Holder v. State 394 Holland v. Davis 770 V. Dickerson 346 V. Osgood 93 V. State 110 HoUenbeck v. Winnebago Co. 257 HoUey v. Burgess 519 HoUida v. Hunt 12 HoUiday v. Ont. Farmers', &c. Co. 524 HoUingsworth v. Buane 390 Hollis V. Meux 643 Hollister v. HoUister 495 V. Union Co. 474 Holloway v. Sherman 347, 442 Holman v. School Trustees 225' Holman's Heirs v. Bank of Norfolk 120, 498, 499 Holmes, Exparte 26 V. Holmes 344, 500 V. Jennison 20, 26 Holt V. Downs 572 V. State 324 Holf s Appeal 235 Holton V. Com'rs Mecklenburg Co. 607 „. Milwaukee 628, 699, 700 Holyoke Co. v. Lyman 337, 487 Home M. Bentinck 543 Home Ins. Co. v. Augusta 243, 345 V. Swigert 138, 607 V. Taxing District 182 Home of the Friendless v. Rouse 338 Homer v. Commonwealth 183 Page Homestead Cases 349 Hood V. Finch 695 V. Lynn 261 V. State 27, 495 Hook V. Hackney 520, 541 Hooker v. Hooker 114 V. New Haven, &c. Co. 666, 669, 670, 693 Hooper, In re 25 V. Bridgewater 655 V. Emery 233, 599, 606 Hoover v. Mitchell 61 V. Wood 196 Hope V. Johnson 442' V. Mayor, &c. 171, 174 Hopkins v. Hopkins 494 Hopple V. Brown 238, 271, 295 Hopps V. People 375 Hopson, In re 422 Hopt V. Utah 384, 388, 391 Horbach v. Miller 448 Horn V. Atlantic, &o. R. R. Co. 713 V. Chicago, &o. R. R. Co. 714 Home V. State 351 Horstman v. Kaufman 880 Horton v. Baptist Church 573 V. Watson 749 Hoskins v. Brantley 749 Hosmer v. Loveland 533, 543, 549 Hospes V. Q'Brien 721 Hotchkiss V. Oliphant 555, 556, 557 Hot Springs R. R. Co. v. Williamson 690 Hottentot Venus Case 423 Houghton V. Huron Copper M. Co. 263 V. Page 35 House V. White 406 House Bill, In re 607, 749 Householder v. Kansas City 99 Houseman v. Kent Circ. Judge 107, 456 House of Rufuge v. Ryan 363 Houston V. Moore 13, 29 Houston, &c. R. R. Co. v. Odum 162, 674 Houston & E. T. Ry. Co. v. Adams 703 Houston & T. C. Ry. Co. v. Texas & P. Ry. Co. 335 Hovelman v. Kansas City 330, 334 Hover v. Barkhoof 222 Hovey v. State 84, 133, 186 Howard, Ex parte 135 V. Church 623 V. McDiamid 228, 787 V. Moot 349 V. San Francisco 254 V. Shields 778 V. Shoemaker 749 V. State 79 V. Thompson 532 V. Zeyer 478 Howard County, Division of 168, 176, 228 V. State 453 Howe V. Plainfleld 505 Howell V. Bristol 620, 624 V. Buffalo 285 V. Fry 505 V. State 175, 480 Howes V. Grush 438, 473 d TABLE OF CASES. Page 61,63 649 27, 498 623, 624 309 20 120 727 445, 465 ■ 248 261 495, 499 254 175 318, 320, 480, 753, 754 372 396 244, 585, 725 391 Howison V. Weeden Howland v. School Dist. Hoxie V. Wright Hoyt V. East Saginaw v. Hudson V. Shelden V. Sprague Hubbard v. Bell V. Brainerd - V. Patterson V. Taunton Hubbell V. Hubbell t'. Viroqua Huber v. People V. Eeily Huckle V. Money Hudelson v.. State Hudson V. Geary V. State V. Thoi-ne Hudson Tel. Co. v. Jersey City Hudspeth v. Davis Huesin'g v. Bock Island Huff V. Bennett V. Cook Hughes, Matter of V. Baltimore V. Cannon V. Hughes V. People V. Recorder's Court Sughey's Lessee v. Horrell HuUng V. Kaw Valley Ry. Co. Hull V. Horner V. Hull ■ V. Marshall Co. V. Miller Hulseman v. Rems Humboldt v. Long Humboldt Co. v. ChTirchill Co. Com'rs 172, 221 Hume V. Commercial Bank V. New York Humes v. Mayor, &c. V. Tabor Humphrey v. Pegues Humphries v. Brogden Hunckel v. Voneiff Hungerf ord's Appeal Hung Hang, Ex parte Hunsaker v. Wright Hunscom v. Hunscom Hunt t). Bennett V. Boonville 0. Hunt V. Lucas V. Murray V. State Hunt's Lessee v. McMahan Hunter, Ex parte 242, 246 250 354 232 551, 557 749 25 256 464 84 240 244 471, 615 695 237, 238 495, 499 272 153 754, 787 270 507 304 251 V. Cobb V. Moore V. Nolf Hunting v. Johnson Huntington v. Cheesbro Huntsville v. Phelps 706 542 61 424 148, 683, 635 586 533, 536, 537, 568 257 344 444 191 163, 183, 396 478 318 593 489 773 441 246 244 Page Huntzinger v. Brock 347 Hurford u. Omaha 91, 93 Hurley v. Powell 641 V. Van Wagner 773 Hurst V. Smith 424 V. State 399 Hurtado v. California 374, 434 Huse V. Glover 38, 595, 598, 729, 730 V. Merriam 639 Huson V. Dale 521 Hussey v. Davis 369 Huston V. Wadsworth 30, 504 Hutcheson v. Peck 414 Hutchinson v. Concord 254 ij. Lewis 542 V. Olympia 302 V. Parkersburg 690 V. Wheeler 521 Hutson V. New York 802 Hutton V. Camden 741 V. State 225 Hyatt V. Bates 60 V. Eondout 303, 304 V. Taylor 69,70 Hyde v. Brush 757 V. Cogan 293 V. Jamaica 255 V. Melvin 774 V. White 184 Hydes v. Joyes 249 Hylton V. United States 589 leck V. Anderson 444 Igoe V. State 175 Illinois, &c. Co. v. Peoria Bridge 730 Illinois & Mich. Canal v. Chicago & R. I. R. R. Co. 340 Illinois Cent. R. R. Co, v. Arnold 714 V. Chicago, &c. E. R. Co. 686 V. Irvin 338 /). McLean/ 633 V. People 337, 712 u. Willenborg 711 V. Wren 163 Illinois Conf. Fem. Col. i;. Cooper 238 Ilsley V. Nichols 364 Imlay u. Union Branch R. R. Co. 675, 678 Indiana Cent. R. R. Co. v. Potts 98, 171, 178, 179 Indianapolis, &c. R. R. Co. v. Kerche- val 341, 706, 709, 713, 714 V. Smith 669 !). Townsend 713 Indianapolis, B. & W. Ry. Co. v. Eberle 669, 674, 679 Indianapolis Sun v. Horrell 519 Ingalls V. Cole 70 Inge V. Police Jury 656 Ingleev. Coolidge 20 Inglis V. Sailors' Snug Harbor 21 V. Shepherd 770 Ingraham v, Geyer 150 V. Regan 66 TABLE OF CASES. Page Inman v. Foster 657 V. Tripp 256 Inman Steamship Co. ». Tinker 596 Innis V. Bolton 754 Insurance Co. v. Morse 489 V. Ritcliie 469 V. Treasurer 20 V. Yard 634 Intendant of Greensboro' v. Mullins 240 Intoxicating Liquors, In re 718 Invest. Com., In re 533 Inwood w. State 390 Iowa R. R. Land Co. v. Soper 456, 480 Ireland i-. Turnpike Co. 196, 355 Iron Mountain Co. v. Haight 184 Iron Mountain R. R. Co. v. Bingliam 679 Iron R. R. Co. v. Ironton 063 Irons V. Field ' 520 Irrigation Resolution, In re 54 Isham V. FuUager 573 V. Trustees 573 Isom V Mississippi, &c. R. R. Co. 210 Israel v Arthur 127, 471 Iverson v. State 182 J. Jack V. Thompson 496 Jackson, Ex parte 12, 371 In re 26 Matter of 418, 423 V. Butler 351 V. Chew 21 V. Commonwealth 387, 388, 389 V. Hathaway 689 V. Jackson 495, 500 V. Lyon 442 V. Munson 317 V Newman 243,609 V. Nimmo 10'? V. Reeves 175 V Rutland & B. R. R. Co. 689, 714 V. Shaw 153 V. Vedder 63 V. Walker 773 V. Winn's Heirs 692 V. Young 93 Jackson Iron Co, v. Auditor-General 595 Jackson. &c. R. Co. v. Interstate, &c. Co. 252 Jacksonville v. Drew 308 Jacob V. Louisville 701 Jacobs, In re 743 V. Cone 388 V Smallwood 354 Jacoway v. Denton 45, 346 James v. Commonwealth 29 V. Pine Bluff 241, 726 V. Rowland 112 V. StuU 353 Jameson v. People ck «« Jamison v. Burton 65, 66 Jane v. Commonwealth 29 Janes v. Reynolds 433 Janson v. Stuart £'■^0 Page January v. January 353 Janvrin v. Exeter 261 Jamagan v. Fleming 521 Jarvis v. Hatheway 532, 543 JefEerson Branch Bank v. Skelly 23, 45, 148 Jefferson City v. Courtmire 241 Jeffersonville, &c. R. R. Co. o. Dun- lap 182 V. Hendricks 25 V. Nichols 713 V. Parkhurst 713 Jeffrey " Brokaw 641 Jeffries w. Ankeny 486, 776 V. Harrington 749 II. Lawrence 282 V. Williams 706 Jeliff V. Newark 615 Jenkins, Ex parte 421 V. Andover 264 V. Charleston 598 V. Ewin 73, 74 V. Jenkins 441 V. Thomasville 241 V. Waldron 776 Jennings v. Paine 542, 546 V. Stafford 500 Jensen v. Union Pac. Ry. Co. 713 Jerome v. Ross 646 Jersey City v. Elmendorf 179 V. Kiernan 309 Jessup V. Carnegie 151 Jett V. Commonwealth 29 Jewett V. New Haven 254 Joannes v. Bennett 524, 525 John V. C. R. & F. W. R. R. Co. 140 John & Cherry Streets, Matter of 436, 652 Johns u. State 387/585 Johnson w. Atlantic, &c. R. R. Co. 646 V. Beazley 61 V. Bentley 461 u. Bond 350 V. Bradstreet Co. 524 V. Brown 560 T. Campbell 280, 468 V. Com'rs Wells Co. 152, 457 V. Common Council 272 V. Commonwealth 520 V. Drummond 596 V. Fletcher 349 V. Siggins 173, 221, 345, 354 u. Hudson R. R. Co. 70 V. Joliet & Chicago R. R. Co. 86, 221 V. Jones 444, 445 V. Loper 596 V. Martin 145 V. Parkersburg 99, 667 V. People 173, 755 V. Philadelphia 233, 243,. 609 V. Railroad Co. 152 V. Rich 143 V. Richardson 463, 469 V. School District 224 u. Spicer 174 V. Stack 140 V. Stark Co. 273 lii TABLE OF CASES. Johnson v. State (1 Tex. App.) 388 V. State (10 Tex.) 876 V. State (29 Ark.) 401 V. Taylor 463 V. Wallace 504 Johnson Co. v. January 270 John Spry Lumber Co. v. Sault Sav- ings Bank 436 Johnston v. Commonwealth 200, 585 V. Dist. Columbia 255 V. Louisville 233 V. Riley 25, 26 Johnstone v. Sutton 543 Joliet V. Harwood 254, 308 V. Verley 256 Joliet, &c. R. R Co. v. Jones 714 Jolly V. Hawesville 257 V. Terre Haute Drawbridge Co. 37, 731 Jones V. Black 197 V. Boston 623, 629 V Carter 478 V. Gavins 189 V. Columbus 175 V. Darnall 425 V. Davis 181 V. Driskell 497 V. Fletcher 868 V. Galena, &c. R. R. Co. 713 V. Harris 586 V. Hutchinson 155, 162, 186 V. Jones(18 Ala.) 448 i>. Jones(104N. Y.) 212 V. Jones (2 Overt.) 132, 321 V. Jones (12 Pa. St.) 132, 221 V. Keep's Estate 592 V. Leonard 25, 26 u. Nebraska 224 V. New Haven 302, 307, 309 V. People 717, 718 V. Perry 110, 117, 121, 124, 432 V. Richmond 227, 260, 739 V. Robbins 212, 505 V. State 327, 407, 759 V. Surprise 150, 717, 718 V. Thompson 178, 179 V. Townsend 517, 537 V. Weathersbee 61 Jonesboro v. Cairo, &c. R. R. Co. 173 Jordan w. Bailey 79 V. Moore 507 V. Woodward 659 Jordan's Case 380 Joseph V. Ernst 609 V. Randolph 597 Joslyn V. Detroit 308 Journeay v. Gibson 463, 466 Joy V. Thompson 356 Joyce V. Woods "42 Joyner v. School District 639 Judkins v. Hill 780 Judson V. Bridgeport 649 V. Reardon 242, 413 Julia Bldg. Ass. v. Bell Tel. Co. 670 Julien V. WoOdsmill 687 Justice V. Commonwealth 341 Page Justices V. Fennimore 508 V. Murray 30 K. Eaine, Matter of 424 V. Commonwealth 482 Kalloch u. Superior Court 374, 434 Kaminitsky v. R. R. Co. 715 Kane v. Baltimore 656 V. Commonwealth 396 .Cook 27 V. People 403 Kansas City v. Baird 624 V. Corrigan 239 V. Huling 445 Kansas City, St. J., ■&c. -R. R. Co. v. St. Joseph, &c. Co. 690 Kansas, N. & D. Ry. Co. v. Cuyken- dall 680 Kansas Pacific R. R. Co. v. Mower 713 Karney v. Paisley 451 Katzenberger v. Aberdeen 269 Kaucher v. Blinn 520 Kaufman v. Dostal 719 Kayser v. Bremen 310 Kean v. McLaughlin 544 V. Stetson 728 Kearney, Exparte (55 Cal.) 424 Ex parte (TW\iea.t.) 424 Keasy v. Louisville 251 Keating v. Cincinnati 256 Keator L. Co. v. St. Croix B. Co. 730 Keddie v. Moore 505 Kedrolivansky v. Niebaum 521 Keen v. State 321, 327 Keenan v. Cook 757 Keene ». Clarke 20 Keese v. Denver 629 Kehrer v. Richmond 256, 667 Keith V. Clark 330 V. Keith 450 V. Kellogg 504 ■u. Ware 444 Keller v. Corpus Christi 646 V. State 176 Kelley v. Boston, &c. R. R. Co. 455 . V. Corson 639, 640 V. Partington 521 V. Pike 61 V. Sherlock 540, 560 Kellinger v. Railroad Co. 677 Kellogg, Exparte 424, 502, 503 V. Hickman 755, 761, 782 V. Janesville 302 V. Oshkosh 147 V. State Treasurer 217 i>, Union Co. 730 Kelly V. Bemis 222 V. Flaherty 521 V. Marshall 262, 281, 606 V. McCarthy 442 V. Meeks 153, 216, 227 V. Milan 269 • V. People 403 TABLE OF CASES. liii Kelly V. Pittsburgh V. Tlnling V. United States Kelsey v. King Kemp, In re Kemper v. McClelland Kendall, Ex parte In re V. Canton V. Dodge V. Kingston V. State V. United States Kendillon v. Maltby Kendricks v. State Kennard a. Louisiana Kennebec Purchase v. Laboree Kennedy, Exparte In re V. Board of Health V. Insurance Co. V. McCarthy V. Phelps V. Sacramento Kennedy's Case Kennett's Petition Kennison v. Beverly Kent V. Bongartz V. Kentland Page 29, 435, 617 510, 641, 560 149 682 890 639, 640 376 752 832 444 64, 216, 451 400 31 533 387 16 437 146 349 742 441 63 721, 742 90 136 606, 668 256 531 610 V. Worthington Local Board 302 Kentish Artillery v. Gardiner 507 Kentucky v. Dennison 25, 26 Kentucky R. R. Tax Cases 16 Kent worthy v. Ironton 309 Kenyon v. Stewart 346 Keokuk v. Packet Co. 37 Ker V. Illinois , 20, 26 Kermott v. Ayer 35 Kerr, Matter of 339 V. Dougherty 151 V. Jones 749 V. Kerr 495 v. Kitchen 122, 125 V. Union Bank 61 Kerrigan, Exparte 389 Kershaw v. Bailey 532 Kerwhacker v. Cleveland, &o.' R. E. Co. 671 Ketchum v. Buffalo 231. Kettering a. Jacksonville 310, 716 Keyser v. Stansifer 572, 573 Kibbe v. Kibbe 27 Kibby v. Chetwood's Adm'rs 122 Kibele v. Philadelphia 309 Kidd V. Guild 478 V. Pierson 718 Kidder v. Parkhurst 542, 543 KiefEer, Exparte 721 Kilbourn, Matter of 161 V. Thompson 159, 160, 161 Kilburn v. Woodworth 27, 498 Kile V. Montgomery 490 Kiley v. Kansas City 254 Kilgore v. Commonwealth 182 V. Magee 153 Kilham v. Ward 776 Page Kilpatrick v. Smith 136 Kimball v. Alcorn 310, 752, 777 V. Kimball , 494 V. Eosendale 470, 641 Kimble v. Whitewater Valley Canal 696 Kimbro v. Bank of Fulton 450 Kimmish v. Ball 25, 740 Kincaid v. Hardin 257 Kincaid's Appeal 149, 250, 740 Kine y. Defenbaugh 99 V. Sewell 642 King V. Belcher 450 V. Burdett 503 V. Davenport 245, 739, 742 V. Dedham Bank 109, 335 V. Hayes ■ 435 V. Hopkins 504 V. Hunter 79, 332 V. Moore 188 V. Patterson 524 V. Reed 142 V. Root 536, 541, 555, 557, 669 V. Wilson 22 King, The, 0. Abington 563 V. Almon 389 V. Bailie 560 V. Bedford Level 750 V. Campbell 522 V. BarUle 550, 580 V. Chancellor of Cambridge 496 V. Clement 555 V. Clewes 382 V. Cooper 383, 884 V. Cox 64 V. Creevey ' 550, 563 V. De Manneville 425 V. Dunn 382 V. Ellis 380 V. Enoch 382 V. Fisher 551, 552 V. Fletcher 403 V. Foxcroft 748, 780 V. Gardner 307 ». Hagan 388 V. Hawkins 780 V. Howes 383 V. Inhab. of Hardwick 297 V. Inhab. of Hipswell 89 i>. Inhab. of St. Gregory 89 V. Inhab. of Woburn 297 f . Kingston 882 V. Lee ' 551 V. Lewis 380 V. Locksdale 89 V. Mayor of Stratford on Avon 236, 237 V. Miller 565 V. Monday 780 V. Newman 557 V. Paine 525 V. Parry 780 V. Partridge 382 V. Richards 383 V. River 380 V. Rosewell 742 o. Simpson 382 liv TABLE OF CASES. Page King, The v. Smith 380 I'. St. Olaves 755 V. Sutton 115 V. Taylor 581 V. Tliomas 382 V. Tizzard 748 V. Tubbs 864 V. Waddington 580, 583 V. Walkley 382 V. Webb 380 V. Withers 780 u. Woodfall 564 ' a. Woolston 581, 582 V. Younger 64 Kingley v. Cousins 356 Kingsbury's Case 26 Kingsland v. Mayor, &c. 488, 670, 700 Kinkead v. McKee 573 Kinmundy v. Mahan 249 Kinne v. Hinman 504 Kinneen v. Wells 758 Kinney, Ex parte 481 0. Beverley 432 Kinney's Case 481 Kinsworthy v. Mitchell 639 Kip V. Paterson 242, 244 Kirby v. Boylston Market 245 ». Pennsylvania R. R Co. 713 V. Shaw 206. 284, 285, 588 Kirk V. Nowill 248 , ii. Rhodes .761 V. State 391 Kirkpatrick v. Eagle Lodg e 533 Kirtland v. Hotchkiss 15, 16, 490, 588 Kisler o. Cameron 784 Kistler v. State 398 Kistner v. Indianapolis 254 Kittanning Coal Co. v. Commonwealth 608 Kleinschmidt v. Dumphy 390 Kleizer v. Symmes 532 Klewin v. Bauman 520 Klinck V. Colby 524, 532 Kline v. Kline 499 Kling V. Fries 719 Klingler v. Bickel 739 Klumph V. Dunn 519 Knapp V. Grant 285, 468 V. Thomas 136 Kneass's Appeal 125 Kneedler v- Lane 13 V. Norristown 245, 247 Kneeland v. Milwaukee 64, 67, 87, 633 V. Pittsburgh 609 Kneetle v. Newcomb 215 Knight V. Begole 465 V. Foster 521, 557 V. Gibbs 621 Kniper v. Louisville 233 Knobloch v. Chicago, &o. By. Co. 244 Knoop V. Piqua Bank 337 Knote V. United States 134 Knoulton v. Redenbaugh 455 Knowles v. People 385, 486 V. Yeates 779 Knox V. Chaloner 727 V. Cleveland 448 Page Knox Co. V. Aspinwall 272 Knoxville v. King 485 Knoxville, &c. R. R. Co. v. Hicks 106 Kobs V. Minneapolis 309 Koehler i-. Hill 43, 162, 163, 747 V. Miller 442 Koenig v. Chicago, B. & Q. R. R. Co. 151, 648 Koestenbader v. Pierce 702 Kohl V. United States 645 Kohlheimer v. State 400 Koontz V. Franklin Co. 331 V. Nabb 65 Koser, Ex parte 585 Koshkonong v. Burton 450 Kountze v. Omaha 221 Kraft V. Wickey 499 Kramer v. Cleveland, &c. R. R. Co. 649, 662 Kranz v. Mayor,' &c. of Baltimore 256 Krebs v. Oliver 519 Kreidler v. State 752 Kreiger v. Shelby R. R. Co. 20 Kreitz v. Behrensmeyer 755, 764, 765, 766, 767, 769 Kring v. Missouri 320, 327 Krone v. Krone 450 Kroop V. Forman 649 Kuekler v. People 326 Kuhn V. Board of Education 228 Kuhns V. Krauiis 178 Kundinger v. Saginaw 473 Kung V. Common Council 482 Kunkle v. Franklin 467 Kuntz V. Sumption 610 Kunz V, Troy 309 Kurtz V. People 173, 176, 725 Kuykendall v. Harker 758, 778 Kyle V Jenkins 318 u. Malin 233 Labrie v. Manchester 233 Lacey v. Davis 452 Lackawana Iron Co, w. Little Wolf 93 Lackland v. North Mo. R. R. Co 228, 233, 671, 672 La Croix v. Co. Com'rs 341, 390, 473 Lacy V. Davis 640 V. Martin 136 Ladd « Rice 407 Laefon v. Dufoe 176 La Fayette v. Bush 251, 667 V. Cox 231, 232, 268, 269 V. Fowler 251, 623, 624 V. Jenners 216 V. Nagle 251 V. Orphan Asylum 632 I'. Tiraberlake 254 La Fayette Plank Road Co. i: New Albany, &c. R. R. Co. 668 Lafayette, &c. R. R. Co. v. Geiger 84, 139 V. Winslow 686 Lahr v. Metr. El. Ry. Co. 681 Lake, Matter of . 453 TABLE OF CASES. Iv Page Lake Erie, &e. R. R. Co. ». Heath 29. 504 Lake Pleasanton W. Co. v. Contra Costa W. Co. 656 Lake Shore, &c, R. R. Co. v. Chicago, &c. R. R. Co. 644, 647, 668 Lake View v. Rose Hill Cemetery 229, 740 V. Tate 246 Lake View School Trustees v. People 225 Lamb v. Lane 99, 695 V. Lynd 158 V. Schotter 693 Lambertson v. Hogan 113 Lammert v. Lidwell 139, 146 Lancaster v. Barr 483 Lance v. Dugan 27 Lancey v. Clifford 727 Lander v. Seaver 415 Landers ». Frank St. M. E. Ch. 573 Landis v. Campbell 5-32 Landon v. Litchfield 388 Lane v. Commonwealth 134 a. Dorraan 123, 216, 432 tf. Nelson 127, 455, 457 V. Vick 21 Lanfear v. Mayor 509 Lang V. Lynch 717, 718 Langan v. Atchison 809 Langdon v. Applegate 66, 182 V. Mayor 670 Lange, Ex parte 403 Langford v. Fly 444 V. Ramsey Co. 692 i>. United States 18 Langhorne v. Robinson 615 Langworthy v. Dubuque 228, 616 Lanier v. Gallatas 113, 771, 779 Lanning v. Carpenter 310, 775 V. Christy 543 Lansing v. Carpenter 541 u. Lansing 772 V. Smith 669 V. Stone 35 V. Toolan 255 V. Van Gorder 234 Lantz V. Hightstown 341 Lanzetti, Succession of 175 Lapeyre i: United States 134 La Plaisance Bay Harbor Co. b. Monroe 38 Laramie Co. v. Albany Co. 228 Larkin v. Noonan 532 V. Saginaw 255 Lamed v. Wheeler 776 Larrison v. Peoria, &c. R. R. Co. 162, 184 Larson v. Furlong V. Grand Forks Lassiter v. Lee Lasure v. State Lathrop v. Mills V. Snyder Latless v. Holmes Lauck's Appeal Laude v. (ftiicago, &o. R. R. Co. Lauer v. State Laura, The Laval V. Meyers Lavalle v Strobel 728 309 444 327 210 504 187 365 77 175 1.35 773 36 45, 113, 230, 283, 543, 140, 244, 302, 49, Law, Ex parte V. People Lawler v. Earle Lawrence, In re V. Bom V. Great Nor. R. R. Co. V. MiHer Lawrenceburg v. Wuest Lawson v. Hicks V. Jeffries Lawyer v. Cipperly Layton v. New Orleans Lea V. Lea V. White Leach v. Money V. People League v. Journeay Leavenworth v. Norton V. Rankin Leavenworth Co. a. Lang V. Miller Leavitt v. Watson Lebanon v. Olcott Lebanon Sch. Dist. v Female Sem. Le Barron v. Le Barron Le Claire v. Davenport Le Due V. Hastings Lee V. Flemingsburgh V. Minneapolis V. Murphy V. Sandy Hill V. State V. Sturges V. Tillotson Leefe, Matter of Lefever v. Detroit Lefferts v. Supervisors Leffiingwell v. Warren Legal Tender Case Legg V. Annapolis Leggett V. Hunter Lehigh Co. v. Hoffort Lehigh Iron Co. v. Lower Macungie Lehigh V. R. R. Co. i'. Commonwealth V. Dover, &c. R. R. Co. Lehigh V. Water Co.'s Appeal Lehigh Water Co. v. Easton Lehman v. McBride Lehn V. San Francisco Leicht V. Burlington Leigh V. State Leisey v. Hardin Leisy v. Hardin Leith V. Leith Leland v. Wilkinson Leloup V. Port of Mobile Lemmon v Chicago &c. R. R. Co. V. People Lemons w. People V. Wells Lennon v. New York Lenz V. Charlton Leominster v. Conant Leonard v. Commonwealth V. Wiseman Leprohon u. Ottawa 316, 818 22, 447, 448, 155, 106, 20, 182, 443, 434, 525 489 506 696 441 240 646 484 572 288 61 546 372 751 740 233 272 611 273 641 662 435 88 744 632 261 251 1.36 309 399 631 215 608 6.32 610 449 13 183 122 254 99 345 668 474 328 754 256 621 784 717 717 495 110 596 713 25 97 519 456 4-32 629 749 71 591 Ivi TABLE OF CASES. Page Page Leroy & W. E. R. Co. v Boss 702 Lipes V. Hand 505 Les Bois v. Bramel 465 Lisbon v. Bath 636 Leslie v. Bonte 63 Litchfield v. McComber 346 V. State 401 V. Vernon 599 Lessley v. Phipps 349 Litowioh V. Litowich 495 Lester v. State 400 Little V. Fitts 491 V. Thurmond 546 V. Madison 257 Levan v. MillhoUand 503 V. Merrill 235 Levins v, Sleator 129, 131 V. Smith 66 Levy V. Hitsche 346 Littlefield v. Brooks 754 V. State 239, 240 Littlejohn v. Greeley 541 Lewis V. Cliapman 523, 525 Little Miami R. R. v. Collett 701 V. Clement 550 V. Dayton 647 V. Commissioners 784 Little Rock v. Katzenstein 624 V. Few 535 537, 557 V. Willis 256 V. Foster 462 Little Rock, &c. R. R. Co. u. Payne 453, V. Garrett's Adm'r 497 718 V. Hawley 520 Little Rock, &c. Ry. Co. v. Brooks 727 V. Levy 550 551, 559 0. Hanniford 480 V. Lewis 365 V. McGehee 700 V. McElvain 442, 461 V. Woodruff 700 V. Thornton 64 Littleton v. Richardson 496 V. Walter 550 V. Smith 501 V. Webb 113, 128, 202, 448, 483 Lewis's Appeal 106, 202 Lexington v. Butler 270 V. Long 700, 701, 702 v. McQuillan's Heirs 614, 626 Lexington, &c. R. R. Co. v. Apple- gate 674 Leyman v. Latimer 519 Libby v. Burnham 640 License Cases 4, 696, 706, 707, 716, 719, 720, 740 License Tax Cases 203, 707, 717, 720 Lieberman v. State 390, 482 Life Association v. Assessors 90 Ligat V. Commonwealth 695 Lightburne v. Taxing District 611 Liles V. Gaster 542 Lillard v. State 403 Lima v. Cemetery Ass. 633 Limestone Co. v. Rather 93 Lincoln v. Alexander 117, 121 V. Boston 254, 304 V. Davis 642 V. Hapgood 755, 776 V. Iron Co. 271 V. Smith 29, 390, 505, 717, 718, 719 V. Tower 27 LindenmuUer v People 725 Lindholm v. St. Paul 309 Lindsay v. Commissioners 193 Lindsey v. Hill 151 V. Smith 520 Lindsley ». Coats 35 Lindzey v. State 326 Linehan, In re 740 Liness v. Hesing 773 Linford v Fitzroy 377 Lining v. Bentham 389 Linn v Minor 67 Linney v. Maton 520 Lin Sing v. Washburn 482, 596, 620, 724 Linsley v. Hubbard 122 Linton v. Stanton 20 Littlewort v. Davis 224 Live Stock, &c. Association v. Cres- cent City, &c. Co. 721 (See Slaughter House Cases.) Livingston v. New York 614 623, 628 V. Paducah 609i V. Redtor, &c. 573 V. Van Ingen 32 Livingston Co. v. Darlington 284, 605 w. Weider 284,605 Livingston's Lessee v. Moore 29 Lloyd V. New York 303, 307, 308 Loan Association v. Topeka 103, 267, 587, 601, 606, 607 Lobrano v. Nelligan 122 Locke V. Bradstreet Co. 524 V. Dane 320, 456 V. Speed 107 Locke's Appeal 146 Lockhart i: Horn 448 V. Locke 27 V. Troy 176 Lockport V. Gaylord 178 Lockwood V. St. Louis 632 Loeb V. Attica 241 V. Mathis 66 LoefEner v. State 375 Logan V. Matthews 725 V. Pyne 233, 244 V. Walton 441 Logansport v. Dick 808 Logue V. Commonwealth 873 Lombard v. Antioch College 444 Lonas v. State 481 Londener o. Lichtenheim 586 London, Mayor, Case of 419 Londonderry v. Andover 236 Long V. Fuller 655, 692 V. Long 776 V. Peters 524 V. Taxing District 246 Long's Case 381 Long Island R. R. Co., Matter of 781 TABLE OF CASES. Ivii Page 478 705 224 44, 778 503 442 338, 472 12 345 63 liongworth v. Worthingtoa Look V. Dean Loomis V. Coleman V. Jackson V. Wadhams Lord V. Chadbourne V. Litchfield V. Steamship Co. V. Thomas r. Wilcox Lorillard v. Clyde V. Monroe 301 Loring v. Marsh 22 Lorman v. Benson 35, 726, 727 V. Clarke 31 Los Angeles v. Water Co. 3-34 Lothrop V. Commercial Bank 151 V. Steadman 55, 116, 125, 138, 743 Lott V. Morgan 596 V. Ross 636 Loughbridge v. Harris 659, 661 Louis V. Schnuckelberg 792 V. Weber 239 Louisiana v. Jumel 17 V. New Orleans 16, 351 V. Pilsbury 346 Louisiana State Lottery v. Kiohoux 162 Louisville v. Commonwealth 307 V. Hyatt 256, 614 V. Eolling Mill Co. 251 V. University 292 Louisville, &c. Co. v. Ballara 176 Louisville, &c. R. R. Co. v. Baldwin 16, 723 V. Burke 716 V. Caster 714 V. Davidson 140 V. Palmes 22, 338 V. State 607, 635, 712 Louisville & Nashville R. R. Co. v. County Court 775 V. Thompson 702 Louisville City R. R. Co. v. Louis- ville 250, 253 Louisville Gas Co. v. Citizens' Gas Co. 22, 343 Loumand v. New Orleans 355 Love V. Moynahan 414 V. Shartzer 478 Loveland v. Detroit 261 Lovingston v. Trustees 609 ,.. Wider 286, 468, 604 Low, Ex parte 607 V. Blanchard 66 u. Dunham' 92 V. (3alena & C. U. R. R. Co. 666 V. Towns 136 Lowe V. Commonwealth 79, 332 Lowell V. Boston 207, 268, 601 V. Hadley 93, 726 V. OUver 278, 279 Lowenberg v. People 403 Loweree v. Newark 692, 694 Lowndes Co. v. Hunter 210 Lowry v. Francis 3-30 V. Rainwater 369 Lucas V. Case 532, 573 ' Page Lucas V. Sawyer 441 ». Tucker 458 Ludlo^f V. Johnson 443 Ludlow's Heirs v. Johnson 70 Ludwig V. Cramer 520, 550 V. Stewart 450 Luehrman v. Taxing District 221, 228 Lumbard v. Aldrich 151 Lumsden v. Cross 452, 602, 615, 624 Lund !?. New Bedford 649 Lunt's Case 202 Luques v. Dresden 263 Lusher v. Scites 220 Luther v. Borden 28, 41, 42, 747 Lycoming v. Union 464 Lyddy v. Long Island City 183 Lydecker v. Palisade Land Co. 639 Lyie V. Richards 35 Lyman v. Boston & Worcester R. R. Co. 713 V. Martin 754 V. Mower ' 444 Lyme v. Turner 302, 307 Lynch, Ex parte 607 V. Brudie 478 V. Hoffman 318 V. New York 251, 255 V. State 396, 409, 410 Lynchburg v. Slaughter "271 Lynda v. County 269 Lyon V. Circuit Judge 65 V. Jerome 249, 646, 663, 692 V. Lyon ■ 496 V. Morris 221, 444 Lyon's Case 526 Lyons v. Chamberlain 272 . M. Mabry v. Baxter 347 MacDougall v. Enight 650 Machette v. Wanless 407 Machine Co. v. Gage 597 Machir v. Moore 773 Mackaboy v. Commonwealth 502 Mackay v. Ford 545 Mackin v. United States 374 Macon v. Hill 251 V. Jones 636 V. Macon & Western R. R. Co. 2.33 V. Patty 614, m Macon & Western R. R. Co. v. Davis 202, 216 Macready v. Wolcott 414 Macy V. Indianapolis 667 Maddox v. Graham 60 Maddrey v. Cox 229 Madison Co. v. People 635 Madison & Ind. R. R. Co. v. Norwicli Savings Society ■ 270, 272 V. Whiteneck 201, 713 Magee v. Commonwealth 624 V. Supervisors 784 v. Young 441 Magruder, Ex parte 318 Iviii TABLE OF CASES. Page Magruder v. Governor 136 Maguire, Matter of 745 V. Maguire 344, 495, 499, 500 Magurn v. Magurn 496, 499 Mahala v. State 400 Mahan ». Cavender 505 Maher v. People 373, 386, 398 Mahomet v. Quackenbush 174 Mahon v. Justice 26 V. New York Central R. R. Co. 673 Mahoney v. Comry, 604 Mahony v. Bank of the State 238 Maiden v. Ingersoll 18 Mairs v. Manhattan, &u. Ass. 669 Maize v. Srate 137, 146, 201, 211 Maluolmson v. Scott 26 Malison, In re 376 Mallory v. Hiles 188 V. Pioneer Press Co. 556 Malone v. Clark 508 V. Stewart 6'20 Maloy V. Marietta 56, 614, 623, 637 Maltus V. Shields 604 Manchester, Matter of 26 Mankatu v. Arnold 390 V. Fowler 243, 609 Manley v. Manley 495, 499 Manly v. Balelgh 227 V. State 72, 73, 81, 391 Manning v. Van Buren 224 Mannix v. Purcell 572 Mansfield v. Mclntyre 495, 499 V. Moore 303 Mansfield, &c. R. R. Co. v. Clark 668 Mapes V. Weeks 557 Marbury v. Madison 59 March v. Commonwealth 289 V. Portsmouth, &o. K. B. Co. 646 Marchant v. Langworthy 93 Marcy v. Oswego 270 Marietta v. Fearing 247, 332 Mariner ». Dyer 389 Marion v. Epler 614, 623 V. State 149, 326, 327 Marion, &c. Ry. Co. v. Champlin 607 Mark v. State 189, 221 Market v. St. Louis 309 Marks, Ex parte 186 V. Baker 641 V. Milstead 390 V. Morris 35 V. Purdue University 152, 284, 605 Marlatt v. Silk 21 Marler v. State 388 Marlow v. Adams • 478 Marmet v. State 480 Marquette Co. v. Ishpemlng Treas. 301 Marron, In re 506 Marsh v. Chesnut 90, 91 V. Ellsworth 542, 546 V. Fulton Co. 270 V. New York & Erie R. R. Co. 714 V. Putnam 357 V. Supervisors 272, 607 Marshall v. Baltimore & Ohio B. R. Co. 165 Marshall v. Donovon 196, 363 V. Grimes 220, 732 V. Gunter 543, 546 V. Harwood 161 V. Kerns 775, 783, 785, 788 V. Silliman 286, 468 V. Vicksburg 696 Marshall Co. Court v. Calloway Co. Court 230 Marshalltown v. Blum 697 Marten v. Van Schaick 557 Martin, Ex parte 695 V. Bigelow 35 V. Broach 175 V. Brooklyn 303 V. Dix 201, 228, 617 V. Hughes 349 V. Hunter's Lessee 11, 18, 20, 29, 108 c. Ingham 186 V. Mott 13, 55 V. State 720 V. Waddell 21 V. Wade 773 Martin's Appeal 125 Mary Smith's Case 881 Mason, Matter of 425 V. Bridge Co. 486 V. Haile 348, 350 V. Harper's Ferry B. Co. 690, 700 V. Kennebec, &c. R. R. Co. 696, 703 u. Lancaster 610 V. Mason 557 V. Messenger 497 V. Spencer 629 V. Wait 106, 124 Massuere v. Dickens 520 Masten v. Olcott 63 Masteron v. Mt. Vernon 809 Mather v. Chapman 458, 469 u. Hodd 502 t>. Ottawa 268, 601 Mathews, Ex parte 66 V. Beach 551 V. Zane 188 Mate, Ex parte 119 Matter of Election Law 772 Matthews v. Densmore 503 Mauch Chunk v. McGee 173 Maul V. State 321 Maull V. Vaughn 349 Maulsby v. Reifsnider 546 Mauran v. Smith 136 Maurer v. People 388 Maurice v. Worden 543 Maxey v. Loyal 348 V. Williamson Co. 271 u. Wise . 463 Maxmilian v. New York 303 Maxwell v. Com'rs Fulton Co. 505 V. Goetchius 125, 128, 470 V. Jonesboro 244 V. Newbold 20 V. Reed 215 May V. Fletcher 441 V. Holdridge 466 V. Logan Co. 450 TABLE OV CASES. Kx Pago May V. Rice 157 Mayberry v. Kelly 195 Mayer, Ex parte 472 u. Schleichter 521 Maynard «. Hill 37, ISl, 844 Maynes v. Moore 346 Mayo V. Freeland 783 V. Sample 533 V. Springfield 256 V. Wilson 35 Mayor, Matter of (99 N. Y.) 263 V. Cooper 19 V. Morgan 158 Mayor, &c., Matter of 614, 632 V. Horn 113 V. Maberry 726 V. The Queen 106, 146, 707 0. Yuille 242, 244, 245, 246, 744 Mayor of Annapolis v. State 172 Mayor of Athens v. Georgia B. B. Co ' 247 Mayor of Baltimore v. Hussey 598 V. State 199 Mayor of Cartersville v. Lanham 726 Mayor of Florence, Ex parte 70 Mayor of Hudson v. Thome 242, 246 Mayor of Hull v. Horner 237, 238 Mayor of Hiintsville v. Phelps 244 Mayor of London's Case 419 Mayor of Lyme v. Turner 302, 307 Mayor of Macon v. Macon & W. R. B. Co. 233 Mayor of Memphis v. Winfield 241, 246 Mayor of Mobile v. Allaire 239, 240 V. Dargan 32, 605, 614 V. Kimball 695, 723, 724 V. Bouse 240 Mayor of New York v. Furze 302 V. Hyatt 240 V. Lord 739 V. Nichols 239, 241, 247 V. Second Ave. R. R. Co. 243 Mayor of Savannah v. Hartridge 232 V. Spears 266 V. State 171, 210 Mayor of Wetumpka v. Winter 140 May rant v. Richardson 541 Mays V. Cincinnati 228, 239, 243, 636 V. Commonwealth 390 McAdoo 0. Benbow Tl McAfee v. Covington 349 McAfee's Heirs v. Kennedy 659 McAlister v. Clark 245 McAllister v. Detroit Free Press Co. 566 V. Hoffman 773 McArthur v. Goddin 442 McAuley !'. Boston • 309 McAunich o. Mississippi, &c. R. B. Co. 153, 176 McBean v Chandler 610, 625 MeBee v Fulton 550, 559, 561 McBrayer v. Hill 520 McBride v. Chicago 614 McCafferty v. Guyer 79, 318 McCall V. Peachy 491 McCampbell v. State 391 McCann v. Sierra Co. McCardle, Expaite McCarroU v. Weeks McCarthy, Matter of V. Boston V. Commonwealth V. Froelke V. Hoffman McCaslin v. State McCauley v. Brooks V. Hargroves McClain v. People McClary v. Lowell McClaughry v, Wetmore McClinch v. Sturgis McCloskey v. Kreling McClure v. Oxford V. Redwing McCluskey v. Cromwell McCoUum, Ex parte McComas v. Krug McComb V. Akron V. Bell V. Gilkey McConkle v. Binns MoCool K.Smith McCormick v. Fitch V. Busch Page 693 114, 221, 469, 473 434 411 257 153 748 465 175 60, 852 27,61 \ 694 725 544 97, 162 739 188, 269, 270 255 70 216 79 251, 667 620 122 568 182 607 H^i, 442 McCormick's Est. v. Harrisburg 624 McCouU V. Manchester 308 McCoy u. Grandy 478 V. Huffman 414 V. Michew 456 McCracken v. Hayward 346, 346, 349, 352 McCrauken Co. v. Merc Trust Co. 448 McCready v. Sexton 453, 641 V. Virginia 24 McCuen v. Ludlum 519 MoCuUoch V. Maryland 18, 28, 78, 688, 590 V. State 95, 162, 163, 167, 210, 221 McCutchen v. Windsor 224 McDade v. Chester 253 McDaniel v. Correll 113, 126, 471 McDermott v. Bvg. Journal Co. 544 McDermott's Appeal 495 McDonald v. Mayor, &c. 262 V. Bedwing 646, 739 V. Schell 505 • V. State 403, 716 V. Woodruff 567 McDonogh v. Millaudon 20 McDuffee v. Sinnott 448 McElrath v. United States 30 McElroy t». Albany 267 McElvain v. Mudd 593 McFadden v. Commonwealth 399 McFarland v. Butler 351, 444 V. State 399 McGatrick v. Wason 585 McGear v. Woodruff 390 McGee v. Mathis 338 V. San Jose 331 McGeehan v. State Trpasurer 456 McGehee v. Mathis 614; 629, 733 V. McKenzie 465 McGhee v. State 180 Ix TABLE OP CASES. Page Mc6i£fert v. McGiffert 494 , 495, 496 McGinity v. New York 304 McGinnis v. State 76 V. Watson 573, 581 McGinty v. Carter 506 McGlinchy v. Barrows 368 McGoon V. Scales 591 McGowan v. State 396 McGruder v. State 183 McGufEee v. State 393, 395 McGuire v. Parker 597 McHaney v. Trustees of Schools 455 Mclnturf v. State 326 Mclntyre v. McBean 523 McKay v. Gordon 27 McKean, Ex parte 26, 421 McKee v. Cheney 166 V. McKee 227, 726 V. People 401 V. Wilcox 75 McKeen v. Delancy 21 McKenna v. Edmundstone 183 V. St. Louis 254 McKenzie v. State 375 McKlhbin v. Fort Smith 245 McKim V. Odom 228 McKinney v. Carroll 20 V. O'Connor 771, 778 V. Salem 341 V. Springer 448 McKlnnon v. People 764 McKinsey v. Squires 505 McKune v. Weller 93, 759 McLane v. Bonn 321, 469 McLaughlin, Ex parte 400 u. Corry 309 V. Cowley 543, 545 V. State 327 McLaurine v, Monroe 27 M'Lean v. Hugarin 61 B. State 752 McLean Co. «. Humphrey 363 McLeod's Case 421 McLlmans v. Lancaster 469 McLure «. Melton 346 McMahon v. Savannah 757 V. St. Louis, &c. By. Co. 690 McManus ti. Carmichael 727 V. McDonough 505 i>. O'SuUiran 20 McMasters v. Commonwealth 623 McMath V. State 396 McMerty v. Morrison 448 McMillan v. Birch 532, 545 V. Boyles 467 V. Lee County 231 V. McNeill 29, 357 McMillen v. Anderson 16, 433 McMinn v. Whelan 640 McMullen v. Hodge 45,88 McNichol V. U. S., &c. Agency 112 McNiel, Ex parte 595 V. Commonwealth 185 McNeill, /n re 158 V. Somers 749 McPherson v. Chebanse 239, 742 Page McPherson v. Foster 232, 269, 272 ». Leonard 97 McQuillen v. Hatton 654, 661 McUea v. Americus 240 McReynolds v. Smallhouse 173, 729, 730 McSorley's Liquors 506 McSpedon v. New York 261 McVeigh v. United States 496, 498 Meacham v. Dow 773 V. Fitchburg R. R. Co. 701 Mead v. Acton 261, 281 0. County Treasurer 751 II. Derby 809 V. Larkin 496 V. McGraw 67 V. Walker 504 Meade v. Beale 22 V. Deputy Marshal 496 Meagher v. Storey Co. 222 Mears v. Commissioners of Wilming- ton 302 Mechanics' & Farmers' Bank v. Smith 246 Mechanics' & Traders' Bank v. De- bolt 149, 337, 338 V. Thomas 338 Mechanics', &c. Bank Appeal 347 Mechanics' Bank v. Smith 84 Meddock v. Williams » 463 Medford v. Learned 454, 455 Meeker v. Van Rensselaer 720, 739 Meguire v. Corwin 166, 773 Meighen v. Strong 465 Meister v. People 412 Mehck V. Washington 243 Melizet's Appeal 131, 441 Mellen v. Western R. R. Corp. 668 Melvin v. Weiant 519 Memphis v. Bolton 703 V. Fisher 484 V. Water Co. 485 V. Winfield 241, 246 Memphis, &c. R. E. Co. v. Payne 694 Memphis & L. R. R. E. Co. v. R. R. Com'rs 338 Memphis Freight Co. v. Memphis 652 Memphis Gas Light Co. b. Shelby Co. 338 Menard Co. i>. Kincaid 443 Menasha v. Hazard 270 Mendel v. Wheeling 254 Mendota v. Thompson 310 Menges v. Wertman 457, 458, 461 Menken v. Atlanta 241, 719 MenserdorfE v. Dwyer 585 Mercer v. McWilliams 691 Merchants' Bank v. Bergen Co. 270, 271 V. Cook 297 Meredith v. Christy ' 749 V. Ladd 166 Merivale v. Carson 658 Meriwether v. Garrett 228, 229, 292 Merrick v. Amherst 264, 284, 605 V. Giddings 160 V. Van Santvoord 150 Merrifield v. Worcester 255, 256, 809 Merrill v. Eastern Riv. R. R. Co. 715 V. Humphrey 610 TABLE OF CASES. Ixi Merrill v. Plainfleld 0. Sherburne Merritt v. Harris Mershon v. State Merwin v. Ballard Page 260, 262 110, 113, 439 634 385 455 Merz V. Missouri Pao. Ry; Co. 712 Meshmeier v. State 137, 146, 211, 220, 718, 719 Messenger v. Mason 20 Mestayer v. Corrig^ 243 Metcalf V. Gilmore 63 Methodist Church v. Ellis 632 V. Wood 573 Meth. Ep. Ch. v. "Wyandotte 256, 667 Metropolitan Board v. Barrie 841, 716, 717 V. Heister 245, 721, 742 Metropolitan Gas Light Co., Matter of 175, 178 Metropolitan Police Board v. Wayne Co. Auditors 282 Metropolitan Tel., &c. Co. v. Colwell li. Co. 670 Metzger, Matter of 424 Mewherter v. Price 175, 179 Meyer v. Berlandi 110, 212, 436 li. Muscatine 269 Meyers v. Baker 743 V. Chicago, E. I. & P. Co. 244 Miami Coal Co. w. Wigton 651 Michales v. Hine 504 Michigan State Bank v. Hastings 335 Middlehrook v. State 389 Middlebrooks v. Ins. Co. 27 Middleport v. Ins. Co. 178 Middleton v. Lowe 136 Middletown, Matter of 169 Re 214 MiflSin V. Railroad Co. 674 Mikesell v. Durkee 681 Milam Co. v. Bateman 290 Milan, & R. P. R. Co. v. Husted 387 Milburn, Ex parte 424 V. Cedar Rapids, &c. R. R. Co. 680 Miles V. Albany 259 0. CaldweU 21 V. State 326 Milhau V. Sharp 233, 247, 252, 257, 67g Millard v. Board of Education 576 Milledgeville v. Cooley 309 Millen v. Anderson 15 Miller, In re 27, 427 V. Birch 742 V. Commonwealth 416 V. Craig 740, 741 V. Dunn 68 V. English 673 V. Gable 572 V. Graham 469, 471 V. Grandy 281, 602 V. Hurford 185 V. Jones 179 V. Max 99 V. Miller ^ 440 V. New York & Erie E. R. Co. 710, 711 Page Miller V. NichoUs 20 V. Parish . 620 V. People 380 V. Rucker 776 V. State (3 Ohio) 96, 162, 163, 167, 180, 195 400 V. State (8 Ind.) V. State (15 Wall.) 337 t>. St. Paul 254 V. Troost 659 Miller's Case 565 Miller's Executor v. Miller 498 Millett V. People 483 Millholland D. Bryant 761 Milligan, Exparte 374, 390 Milligan's Appeal 771 Milliken u. City Council 245 MiUs, Matter of 411 V. Brooklyn 254, 302, 307 V. Charleton 176, 177, 227, 285, 468, 601 V. Duryea 28 V. Gleason 231, 233, 640 V. JefEei'son 190 V. St. Clair Co. 488 V. Williams 228, 333, 335, 336 Milne v. Davidson 742 Milner v. Pensacola 228 Milward v. Thatclier 748 Milwaukee ». Gross 245, 721 Milwaukee Gas. L. Co. v. Schooner Gamecock 37 Milwaukee Ind. School u. Supervi- sors 363, 504 Milwaukee Town v. Milwaukee City 230 Miner v. Detroit Post & Tribune 642, 562 V. Markham 160 Miners' Bank v. Iowa 37 V. United States 125, 335 Minneapolis v. Wilkin 473, 508 Minneapolis & St. L. Ry. Co. v. Beck- with 15, 707 V. Herriok 15 Minneapolis Gas Light Co. v. Minne- apolis 249 Minnesota v. Barber 721 V. Young 119 Minor v. Board of Education 577 0. Happersett 15, 39, 40, 83, 490, 753 Minot V. West Roxbury 166 Miss., &c. Boom Co, «. Prince 178 Mississippi Mills v. Cook 99, 607 Mississippi R. R. Co. v. McDonald 336 Mississippi Society v. Musgrove 335 Missouri v. Lewis 16, 480 Missouri Pac. Ry. Co. v. Finley 740 V. Houseman 695 V. Humes 15, 454, 713 0. Mackey 15, 16, 480 V. Richmond 533 Mitchell V. Burlington 269 V. Clark 17 II. Deeds 457, 460 V. Harmony ' 652 V. Illinois, &c. Coal Co. 99, 649 V. Murphy 328 Ixii TABLE OF CASES, Page Mitchell V. Rome 251 V. State 401 V. St. John 504 V. Tibbetts 149 V. Williams 740 Mitchell's Case 407 MithofE V. CarroUton 656 Moberly v. Preston 520 Mobile V. Allaire 239, 240 V. Dargan 32 605, 614 V. Kimball 595, 723, 724 V. Bouse 240 V. Watson 230, 355 Mobile & Ohio K. R. Co. v. State 183, 196, 210, 214, 215 Moers v. City of Reading 84, 140 MofEatt V. Hardin 407 Mohan v. Jackson 749 Mohawk & Hudson R. R. Co., Matter of 93 Mohawk Bridge Co. v. Utica & Sche- nectady R. R. Co. 489 Mohr, In re 26 Mok V. Detroit, &c. Association 181 Monday v. Bahway 107 Money v. Leach 367 Monford v. Barney 505 Monk V. Corbin 449 Monmouth v. Leeds 90 Monongahela Navigation Co. v. Coons 666, 669 Monopolies, Case of 342, 485 Monroe v. Collins 79, 212, 486, 757, 758, 759, 776 V. Hoffman 245, 739 Montana Centr. Ry. Co. v. Helena, &c. Co. 686 Montclair v. New York, &e. Ry. Co. 711 , V. Ramsdell 173 Montee v. Commonwealth 396 Montgomery v. Deeley 519 V. Hobson 463 V. Kasson 330, 343 V. Meredith 456 V. Montgomery Water Works 262 V. State 396, 568 u. Townsend 251, 689, 690 V. Wasem 640 Montgomery Co. u. Elston 591 Monticello v. Banks 625 Monticello Bank v. Coffin's Grove 224 • Montjoy v. Pillow 474, 489 Montpelier v. East Montpelier 229, 292, 334 . Montpelier Academy v. George 229 : MontroBS v. State , 107, 139, 899 Mooar v. Harvey 756 Moodalay v. East India Co. 306 Moody V. State 155, 162, 183 Moog V. Randolph 162 Moon V. Atlanta 690 a. Durden 77 V. Stevens 507 Moor V. Luce 448 Moore, Ex parte 178 Matter of 410 V. Atlanta 251 Pago Moore v. Cass 472 V. Detroit Locomotive Works 492 V. Greenhow 347 V. Holland 347 V. Houston 202 i>. Kent 441 V. Kessler 783 V. Maxwell 122 V. Meagher 521 i>. Minneapolis 309, .341 V. Moore 593 V. New Orleans 213 «. People 29, 241 . Harvey 229 V. Wharf 690 Omaha v. Olmstead 309 V. Shaller 701 Omaha & R. V. E. R. Co. v. Standin 690 Omaha Horse Ry.Co.u. Cable, &c. Co. 690 Omaha V. R. R. Co. v. Rogers 679 O'Maley v. Freeport 245 O'Nail V. Craig 215 Onslow V. Home . 637 Opinions of Justices (80 Com,) 754 (23 Fla.) 63 (79 Ky.) 54 (7 Mass. ) 759 (16 Mass.) 759 (18 Pick.) 41 (1 Met.) 149, 756 (6 Cush.) 42 (99 Mass.) 184 (115 Mass.) 749 79, 332, 785 753 133 63 131 94,98 767, 780 761 278 207, 601, 602 753 767, 783 64,56 139 120 390, 504 754 185, 754 162 788 158 784 625 113, 114 754 Orange, &c. R. E. Co, v, Alexandria 683 Ordineal v. Barry 166 Oregon v. Jennings 235, 271 Oregon By. & Nav. Co. v. Oregon, &c. Co. 649 Oregon By. Co. v. Portland 688 O'Reiley v. Kankakee Co. 628 O'Reilley v. Kingston 624 Oriental Bank v. Freeze 444, 472 Orman v. State 407 Ormichund v. Barker 586 Ormond r. Martin 478 Ormsby v. Douglass 624 Orphan Asylum's Appeal 615, 624 Orphan House v. Lawrence 63 (117 Mass ) (124 Mass.) (138 Mass.) (21 N. E. Eep. Mass.) (16 Me.) (18 Me.) (38 Me.) (45 Me.) ' (52 Me.) (68 Me.) (62 Me.) (64 Me.) (49 Mo.) (55 Mo.) (4 N. H.) (41 N. H.) (44 N. H.) 45 N. H.) (52 n: H.) (53 N. H.) (56 N. H.) (58 N. H.) (63 N. H.) (3 R. I.) (87 Vt.) Orr V. Quimby 692 V. Skofield 520 Ortman v.- GreenmaH 196 Orton V. Noonan 466 Ortwein v. Commonwealth 375 Osage, &o. R. R. Co. v. Morgan Co. 272 Osborn v. Adams Co. 601 V. Hart 486, 652 V. Jaines 450 . Cook(14Barb. andSN.Y.) 89, 764, 765, 766, 767, 770, 777, 783, • 785, 788 (10 Mich.) 399, 400 V. Coming 394 V. County Board of Cass 269 V. Courtney 384 V. Cover 788 V. Cowles 101, 235, 76fl V. Croswell 89C TABLE 01* CASES. Ixix People 1). Cullom V. Curtis t). Daniell V. Davenport V. Bawell V. Dayton V. Dean V. Denahy i». Devine V. Devlin V. Dill V. Doe V. Donohue Page 136 26, 400 107 338, 632 27, 28, 495 84 486 176, 179 888 184 394 93, 598 26 ». Draper 59,105,202,204,221,227 228, 706 V. Dubois 332 V. Dudley 175 ?'. Dunn 138, 163 V. Eddy 635 V. Fairman 425 V. Fancher 101 ». Father Mathevr Society 174 V. Felker 403 V. Ferguson 766 V. Finley 375 V. Finnigan 396 V. Fire Ass. 607 V. Fisher 204 V. Flagg 221, 283, 604, 606 V. Flanagan 832, 378 I'. Fleming 139, 220 V. Ford 411 V. Freeman 133 V. Freer 555 V. Frisbie 113, 483 V. Gadway 179 V. Gallagher 205, 206, 481, 718 V. Garbutt 375, 898 V. Gardner 150 V. Gaatro 393 V. Gates 593 V. Gerke 18 V. German, &c.. Church 573 V. Gies 80, 508 V. Gilbert 450 V. Gillson 744 V. Goddatd 749 i>. Goodwin 400, 785 V. Gordon 776 V. Governor 136, 192 V. Gray 269 V. Green 35, 381, 692, 698, 748 V. Hall 158, 210, 344 V. Hanifan 748 V. Hanrahan 170, 239, 241 „. Harding 81, 400 V. Hartwell 93, 235, 759, 779 V. HaskeU 332 V. Hatch 185 V. Hauck 179 V. Haug 173, 403, 482, 720, 743 V. Hawes 287, 288 V. Hawley 718 ». Hayden 692, 693 V. Hennessey 381 V. Henshaw 163 Page People t). Siggins 767, 778, 782, 785, 788, 789 V. Hill 210 V. Billiard 783 V. Hobson 469 V. Hoffman 107, 748, 757 V. Eoge 99, 100 V. Holden 756, 765, 788 V. HoUey 98 V. Howard 151, 172, 387 V. Hubbard 864 V. Hurlbut 50, 162, 174, 176, 207, 225, 227, 282, 293, 306 V. Imlay 25 V. IngersoU 334, 345 V. Institution, &c. 171 V. Jackson & Michigan Plank B. Co. 336, 355, 710, 711 V. Jenkins 726, 732 V. Jenness 586 V. Jones 387, 783, 785 V. Kane 752 V. Eeeler 161 V. Eeenan 409 V. Kelly 425 V. Kelsey 227 o. Kennedy 768 V. Kenney 196, 211 B. Kent County Canvassers 771 V. Kerr 666, 677, 679, 682 w. Kerrigan 379 V. Kier ^44 V. Kilduffi 761, 783 V. Kniskern 695 V. Koeber 500 V. Kopplekom 757, 758 V. Lake Co. 98 V. Lake Shore, &c. Ry. Co. 666, 711 V. Lamb 898 €/. Lambert 382, 387 V. Lambier 488 V. Lawrence 94, 98, 170, 210, 220, 260, 262 «. Leonard 749 V. Le Roy 383 V. Lippincott 831 V. Liscomb 423 V. Livingston 789 V. Londoner 785 V. Loomis 765 V. Lothrop 310 V. Lott 497 V. Lowrey 389 V. Lynch 456, 470 V. Lyng 597, 717 b. Mahaney 158, 162, 171, 172, 181, 182, 203, 292, 637 V. Majors 398 V. Manhattan Co. 335 V. Martin 759 V. Marx 741 V. Matteson 764, 770, 785, 788 V. Maynard 87, 237, 310, 775 V. Mayworm 766 V. McAdams 575 V. McCallum 173, 176, 182 Ixx TABLE OF CASES. People V. McCann v. MeCreery V. McDonnell V. McElroy V. McFadden !;. McGowan V. McKay V. McKinney V. McMahon V. McManus V. McNealy V. McRoberts 175, 177, 375 2B3, 635 375 162, 166, 167 145 399, 401 389 79, 335 380, 382, 388 764, 770. 778 400 99, 650 V. Medical Society of Erie 248 V. Mellen 174 V. Mercein 425 V. Merrill 149 V. Mitchell 453, 468 V. MoUiter 780 V. Mondon 383 V. Moore 374 V. Morrell 69, 106 V. Mort-is 208, 229, 291, 306, 333 V. Mortimer 327 V. MulhoUand 245 V. Murphy 388, 411 t;. Murray 216 V. Nally 139, 140 V. Nearing 656 V. New York 340, 644, 646, 710, 732 V. New York Catholic Protectory 363 V. Nichols 639 V. Noelke 328, 385 V. Nostrand 748 V. N. Y. Central E. E. Co. 70, 73, 80, 206, 206, 220 V. O'Brien 178, 386, 436 V. Olmstead 327 V. O'Neil 740 V. Ormsby 389 V. Osborne 106, 1.33 V. Otis 344 V. Parker 66 V. Pease 762, 763, 767, 769, 776, 783, 789, 790 V. Peck 93 V. Phelps 327 V. Phillips 382, 781 V. Phippin 25, 484, 746 V. Pine 396 V. Pinkerton 26 V. Pinkney 228 V. Plank Eoad 457 V. Piatt 183, 330 V. Porter 381, 584, 759 V. Potrero, &c. R. E. Co. 38 V. Potter 80 ». Power 228, 283, 288, 834 V. Pritchard 182 V. Purdy 70, 72, 80, 94, 184 V. Quigg 175, 183 V. Railroad Co. 506 V. Raymond 79, 332 V. Eeardon 786 V. Reed 732 V. Refining Co. 485 V. Rensselaer, &c. E. E. Co. 196 Page People V. Eiordan 139 V. Riverside 227 V. Robertson 785, 786, 788, 789 V. Rochester 175, 213 V. Roe 726, 732 V. Roper 338, 472 V. Royal 394 V. Rucker 106, 193, 204 V. Euggles 580, 581, 682 V. Rumsey 99 V. Eunkel 93 V. Eussell 12, 243, 609, 706 V. Sackett 789 V. Salomon 140, 145, 222, 810, 598, 776 V. Sanderson 749 V. Saxton 764, 765 o. Schermerhorn 90 V. Schiellein 784 V. Schryver 376 V. Seaman 764, 765, 766, 785 V. Seymour 460 V. Simpson 388 V. Sligh 388 ». Smith 376, 492, 663 V. Spicer 455 V. Springwells 310, 605 V. Squire 341, 710 V. Starne 95, 98, 162, 167 V. Stephens 398 V. Stevens 240 V. Stewart 136 V. Stout 137, 142 V. Stuart 110 V. Sullivan ' 280, 373 V. Supervisors 269, 784 V. Supervisor, &c. (16 Mich.) 273 V. Supervisors, &c. (20 Mich.) 469 V. Supervisors, &o. (16 N. Y.) 113 V. Supervisors, &c. (94 N. Y.) 230 V. Supervisors of Chenango 94, 162, 471, 615 ». Supervisors of Columbia 276, 454 V. Supervisors of La Salle 67, 84 V. Supervisors of New York 109, 111, 287 V. Supervisors of Onondaga 183, 259 V. Supervisors of Orange 106, 201, 206, 219 V. Supervisors of Saginaw 599 V. Supervisors of San Francisco 283 u. Swafford 379 V. Tallman 695 V. Tappan 293 V. Tazewell County 269 V. Terry 751 V. Thach6r 764 V. Thayers 396 V. Thomas 880, 386 V. Thurber 25, 609 V. Tisdale 766, 767 V. Tompkins 93 V. Townsend 616 V. Township Board of Salem 266, 485, 599, 605, 659 D. Toynbee 206 TABLE OF CASES. Ixxi Page People V. Trustees of Schools 683 V.Turner 363,450,453 V. Tweed 228 V. Tyler 384, 385, 399 V. United States 591 V. Van Alstine 407 B. Van Cleve 783, 785, 788 V. Van Eps 497 V. Van Home 376 V. Van Slyck 783 V. Videto 396 V. Waite 778 V. "Wallace 95, 153 u. Walsh 291 V. Wands 173 0. Warden, &c. 424 V. Webb 394, 399, 400 V. Weissenbach 425 V. White 400 V. Whitlock 175 V. Whitman 749 V. Whyler 630 V. Williams 80, 150 V. Willsea 175 t,. Wilson 889, 555, 778 V. Worthington 632 V. Wright T2, 84, 106, 181 V. Yates 136 V. Young 107, 301 Peoria v. Calhoun 241, 248 V. Kidder. 614, 623, 633 Peoria, &o. R. R. Co. v. Peoria, &c. Co. 339 Peoria, &c. Ry. Co. v. Duggan 454, 481, 713 Peoria County v. Harvey 696 Percy, In re 411 Perdue v. Burnett 519 Pereless v. Watertown 450 Perkins, Ex parte 389 V. Burlington 621 V. Carraway 761, 765 V. Corbin 331 V. Grey • 407 17. Lawrence 257 li, Lewis 273 V. Milford 281 V. Mitchell 542 V. Perkins 455 Perley v. Mason 357 Perret v. New Orleans Times 562 Perrin v. New London 268 Perrine v. Chesapeake & Delaware Canal Co. 487 V. Farr 500 V. Serrell 61 Perry v. Keene 203 V. Lewis 61 V. Man 519 V. Reynolds 755, 776 V. State 423 V. Washburn 587 V. Wheeler 673 V. Whittaker 784 Perry's Case 320, 686 Persons v. Jones 63 Page Peru V. French 302 Pesterfield v. Vickers 239 Peterraa'n v. Huling 190 Peters v. Fergus Falls 256 V. Iron Mt. R. R. Co. 709, 715 Petersburg o. Metzker 239 Petersilea i'. Stone 751 Peterson v. Kittredge 640 V. Lothrop 63 Pettibone v. La Crosse & Milwaukee R. R. Co. 696 Pettigrew v. Evansville 646 V. Washington Co. 509 Petty V. Tooker 573 Fharis v. Dice 352 Phelps V. Goldthwaite 770 V. Meade 641 V. Phelps 216 V. Racey 740 V. Schroder 783, 784 Phelps' Appeal 443 Phenix Ins. Co. v. Burdett 25 V. Pollard 469 Philadelphia v. Commonwealth 497 V. Dickson 696 V. Dyer 696 V. Fox 228, 229, 306 V. Gray's Ferry Co.'s Appeal 339 V. Miller 610 V. Rule 625 V. Scott 706, 733, 739 V. Smith 303 V. Tryon 629, 726 Philadelphia & Reading R. R. Co. v. Yeiser 703 Philadelphia & Trenton R. R-. Co., Case of 674 Philadelphia, &c. R. R. Co. v. Bowers 737 V. Quigley 533 Philadelphia, &o. Ry. Co.'s Appeal 647 Philadelphia Assoc, &c. v- Wood 620 Philadelphia Fire Ass. v. New York 16, 20 Philadelphia S. S. Co. i;. Pennsyl- vania 595, 596 Philips V. Bury 306 Philleo V. Hiles 607 Phillips V. Allen 248 V. Berick 61 ^ V. Bridge Co. 176, 178 V. Council Bluffs 251 V. Covington, &c. Co. 176 V. Dunkirk, &c. R. R. Co. 648 •J. People 241 V. South Park Com'rs 694 V. Stevens Point 611 V. Watson 653 V. Wickham 628 V. Wiley 520 Phillpotts V. Blasdel 61 Phinizy v. Augusta 309 Phmney v. Phinney 353 Phipps V. State 732 V. West Md. R. R. Co. 678 Phoenix Ins. Co. v. Allen 409 V. Commonwealth 25 V. Welch 138, 607 Ixxii TABLE OF CASES. Piatt V. People Pickard v. Pullman, &c. Co. Pickett V. Boyd V. School District PIcquet, Appellant Page 778 696 443,456 224 114 Piek V. Chicago, &c. B. B. Co. 711 Pierce v. Bartrum 721 V. Beck 224 V. Boston, &c. B. B. Corp. 684 V. Drew 656, 670 V. Getchell 776 V. Hubbard 504 V. Kimball 444, 746 V. Maryland 741 V. New Bedford 254 V. New Orleans Building Co. 235 V. Pierce 222 V. State 396 V. Union Dist. 482 Pierpont v. Crouch 180 Pierson v. State 85 Pike V. Megoun 83, 776 V. Middleton 259 V. State 607 Pike Co. V. Barnes ' 139 V. Bowland 235 Pilkey v. Gleason 191 Pim V. Nicholson 97, 167, 180, 195 Pine Grove v. Talcott 610 Pingrey v. Washburn 164, 710 Piper V. Chappell 244 u. Moulton 225 Piqua V. Zimmerlin 743 Piqua Branch Bank v. Knoop 148, 335, 338 Piquet, Appellant 483 Piscataqua Bridge v. New Hampshire Bridge 337, 339, 474, 647 Pitman v. Bump 448 V. Flint 70 Pittoek V. O'Neil 893, 550, 551, 568 Pittsburg V. Coursin 90 V. Grier 302 V. Scott 652 Pittsburg, &c. E. E. Co. v. Brown 741 V. Eeich 701 V. S. W. Penn. B. E. Co. 714 Pittsburg, &c. By. Co. v. Hixon 61 Pittsburg W. & K. Co. v. Benwood Iron Works 653 Pixley )'. Clark 706 PizaHo ». State 399 Plante, Ex parte 424 Planter's Bank v. Black 112 V. Sharp 148, 335 Plainer v. Best 61 PlatteTille v. Bell 244 Pleasant v. Kost 630 V. State 396 Pleasants v. Eohrer 448 Pledger v. Hathcock 520 Pleuler e. State 341, 609 Plimpton V. Somerset 287, 390 Plitt V. Cox 682, 688 Plumb V. Sawyer 442, 45S Plummer v. Plummer 84 Plunkard v. State 16 •Plurality Elections, In re Plymouth v. Painter Pocopson Boad Poertner v. Bussell Poindexter v. Greenhow Page 779 751 653 66 17, 330, 344 Police Commissioners o. Louisville 706 Police Jury v. Britton 269 V. Shreveport 229 Polinsky v. People 245 Polk V. State 375 Polk Co. Sav. Bank v. State 598 Polk's Lessee v. Wendal 26 Pollard V. Lyon 519, 520 V. State 375 Pollard's Lessee v. Hagan 35, 644, 645 Polling Lists, In re 757 Pollock V. Hastings 519 V. McClurken 479 Pollock's Adm. v. Louisville 257 Pomeroy v. Chicago, &c. B. B. Co. 674 Pomf rey v. Saratoga 309 Pond V. Irwin 67 V. Negus 93 V. People 373 Ponder v. Graham 132 Pontiac v. Carter 251, 667 Pool V. Boston 261 Pope ». Macon 453, 478 V. Phifer 38, 176 H. State 388 Popham V. Pickbum 564 Porter v, Botkins 521 I. Hill 60 0. Mariner 347 «. Sawyer 773 Porterfield v. Clark 21 Port Huron v. Jenkinson 241, 723 Port Huron, &o. By. Co. v. Callanan 695 V. Voorheis 700 Portland ». Bangor 15, 490 V. Schmidt 220, 247 V. Water Co. 633 Portland & E. E. E. Co. v. Deering 700, 711 Portland & W. "V. E. B. Co. v. Port- land 679 Portland Bank v. Apthorp 588 Port Wardens v. The Ward 722 Portwood ». Montgomery Go. 230, 288 Post V. Boston 309 V. Supervisors 22, 168 Postmaster v. Early 112 Potter B. Hiscox 499 Potts V. Penn. S. V. E. R. Co. 700 Poughkeepsie Bridge Co., Matter of 644 Powell, Ex parte 26, 134 V, Board of Education 223 V. Brandon 36 r. Holman 789 V. Jackson Com. Council 172 V. Pennsylvania 741 V. Sims 35 V. State 67, 112, 400 Power V. Athens 489 Powers V. Bears 693 0. Bergen 124, 125 TABLE OF CASES. Ixxiii Powers V. Dougherty Co. v. Dubois V. Skinner Powers's Appeal Poyer v. Des Plaines Page ua 521, 537 166 649, 695 742 Pratt V. Brown 67, 472, 473, 652, 658, 662 . Donovan 1'. Jones V. People 0. Pioneer Press Co. V. TefEt Pray v. Northern Liberties Prentice v. Weston Prentis v. Commonwealth Prentiss v. Boston V. Holbrook Presbyterian Society v. Auburn, &c. R. R. Co. Prescott V. City of Chicago V. State 29, 363 V. Tonsey 543 V. Trustees of Illinois & M. Canal 163 President D. & H. C. Co. v. Whitehall 686 497 451 773 520, 556 441 632 639 161 309 61 674 176 Presser v. Illinois Preston v. Boston V. Browder Prettyman v. Supervisors, &c, Price V. Baker V. Hopkin V. Mott V. New Jersey R. R. Co. V. State Prichard's Case Priestly v. Watkins Primm v. Belleville Prince v. Skillin Princeton v. Gieske Pritchard v. Citizen's Bank Pritchett v. State PritE, Ex parte Privett 0. Bickford Proctor V. Andover Prohibitory Amendment Cases 15,29 491 21 140, 273 780 188, 450 77 714 399, 400, 401 160 344 607, 6.34 783, 784, 785, 787 256 442 400 152 748, 780 653 423, 718, 748 Proprietors, &c. v. Labc$ree 450 V. Nashua & Lowell R^ R. Co. 646, 684, 701, 702 Proprietors Mt. Auburn Cemetery v. R. Co. V. wa- 338 670 498 303 98, 175 Cambridge Prospect Park, &c. R, liamson Prosser v. Wapello Co> V. Warner Prother v. Lexington Protho V. Orr Frotzman v. Indianapolis, &c. R. R. Co. 669, 679 Prout V. Berry 114 Providence v. Clapp 309 Providence, &c. R. R. Co. v. Norwich, &c. R. R. Co. 686 Providence Bank v. Billings 338, 487, 588 Providence Coal Co. v. Prov. & W. R. R. Co. 737 Providence Savings Institute v. Skat- ing Rink 848 Provident Inst. v. Jersey City 16 Pryor v. Downey 127, 471 Pueblo V. Robinson 615, 624 Puitt V. Com'rs 482, 608 Pulf ord V. Fire Department 168 Pullman P. C. Co. v. State 609 PuUen V. Raleigh 233 Pumpelly v. Green Bay, &c. Co. 667, 670 Purcell V. Sowler 541 Purvear v. Commonwealth 29, 720 Puryear v. State 388 Putnam v. Johnson 764, 755 Q- Quackenbush v. Danks 348, 455 V. Wisconsin, &c. R. R. Co. 714 Quarrier, Ex parte 818 Queen, The, v. Badger • 377 V. Coaks 780 V. Collins 525, 526 V. Hennessy 150 V. Justices of Hertfordshire 509 V. Justices of London 509 V. Justices of Sufiolk 509 V. Lefroy 655 V. Newman 670 1?. Pikesley 380 Quick '». Whitewater Township 72 Quigley v. Pa. S. V. R. R. Co. 690 Quimby v. Vermont Central R. R. Co. 687 Quinoy v. Jackson 269, 636 V. Jones 251 Quinn v. Marcoe 761, 778 V. State 79, 753 Quong Woo, Matter of, 249, 745, 746 R. Rabb V. Supervisors Radcliffe v. Eden Radcliffe's Executors v. Rader v. Road District V. Union Rae V. Flint Ragatz V. Dubuque Ragis V. State Rahway v. Munday Rail V. Potts Railroad Co. v. Alabama V. Bearss V. Brown V. Commissioners V. Com'rs of ClintOQ V. Dayton V. Ferris u. Foreman V. Fuller V. Georgia V. Gregory V. Hambleton V. Hicks 450 293 Brooklyn 251, 666, 667 228 178 283 693 179- 355 776 17, 351 764 16 Co, 137, 140 685 691 701 709, 712, 737 22,30 176 683 201 Ixxiv TABLE OF CASES. Bailroad Co v. Hueen 740 V. Jackson 598 V. Lake 648 V. Maine 336 V. McClure 45 V. Mississippi 17, 19 V. National Bank 23 V. Peniston 592 V. Philadelphia 638 V. Pounds 456 V. Bichmond 438, 666 V. Eock 20 V. Shurmeir 682 V. Tennessee 17, 351 V. Trimble 27 V. "Warren Co. 93 V. Whiteneck 176 Bailroad Com. Cases 15, 737 Bailroad Commissioners v. Portland, &o. B. E. Co, 336, 715 Bailway Co. v. Lawrence 683 V. Philadelphia 838, 632 V. Presoott ' 591 V. Benwick 670 Bailway Gross Beceipts Tax 596 Baleigh v. Sorrell 744 Baleigh, &c. B. B. Co. v. Davis 662 V. Beid 837, 338 Balston v. Lothain 442 Band v. Commonwealth 327, 328 Bandall v. Eastern B. B. Corp. 256 V. Jacksonville, &c. Co. 677 V. Kehlor 505 V. Bailroad Co. 254 Bandolph, Ex parte 196 V. Good 79, 316 Bandolph Co. v. Balls 503 Bangely v. Webster 27 Banger v. Goodrich 521 V. Great Western E. E. 507 Bankin v. West 75 Bape V. Heaton 27, 498, 501 BatclifCe v. Anderson 113 Bathbone v. Bradford 188 Eathbun v. Wheeler 443 Eatterman v. W. U. Tel. Co. 596 Batzky v. People 326 Bawley v. Hooker 352 Bawson v. Spencer 223, 229, 230, 292 Bay V. Gage 456 V. Manchester 254 V. St. Paul 309 V. Sweeney 35 Eay Co. «. Bentley 295 Eaymond v. Fish 721 Bea V. Harrington 519 Bead v. Case 416 V. Plattsmouth 153, 176, 283, 465 Beading v. Keppleman 251 ». Savage 153 Beading & P. E. E. Co. ». Balthasar 700 Beam v. Kearns 509 Beardon v. San Francisco 251, 690 V. St. Louis 301 Bearick v. Wilcox 586, 537 Beaume v. Chambers 35 Page Eecalling Bills, Be 184 Eecht V. Kelly 215 Eeciprocity Bank, Matter of the 45 Beckner v. Warner 505 Ee-creation of New Counties 167 Eector v. Smith 525, 542, 544 Bed Biver Bridge Co. v. Clarksville 047 Bed Bock v. Henry 183 Beddall v. Bryan 20, 645, 650 Bedfield v. Florence 772 Redwood Co. v. Winona, &c. Co. 456, 610 Beed v. Beall 345 V. Belfast 255 V. Ohio, Sua. By. Co. 649 V. Beed 27, 495 V. Bice 29 V. State 175 V. Toledo 232 V. Tyler 453 V. Wright 432 Eees's App. 656 Beeves v. Treasurer of Wood Co. 614, 623, 628, 652, 653, 656, 733 Eeformed Church v. Schoolcraft 448, 573 Beformed P. D. Church v. Mott 122, 125 Begents of University v. Williams 125, 149, 198, 214 Eeggel, Ex parte 25, 26 Begina. (See Queen.) Begnier v. Cabot 521 Behoboth v. Hunt 330 Beich V. State 241 Beid V. Delorme 632 V. Smoulter 79 Reilly v. Stephenson 436 Reimsdyke v. Kane 23 Beiser v. Tell Association 112, 113 Beitan v. Goebel 521 Beitenbaugh v. Chester Valley B. E. Co. 649 Eeithmiller v. People 201 Bemington, In re 389 V. Congdon 532 Eemsen v. People 398 Eenner v. Bennett 781 Eennselaer v. Leopold 647 Beno Smelting Works v. Stevenson 35 Eentz V. Detroit 624 Eequa v. Bochester 304 Be-reading of Bills 167 Eesponse to House Besolution 139 Bespublica v. Dennie 517, 629 V. Duquet 245, 739 V. Gibbs 771, 772 V. Oswald 389, 655 V. Passmore 556 Beusch 0. Cliicago, &c. B. B. Co. 646 Bevis V. Smith 542 Bex. (See King, The.) Bexford v. Knight 688, 692, 693 Beynolds, Ex parte 83. 694, 695 V. Baker ' 39, 448 V. Baldwin 229 V. Geary 718 V. New Salem 235 V. Shreveport 251 TABLE OF CASES. Ixxv Reynolds v. State Page 785 V. Stockton 28 V. United States 674, 578 Rhine v. McKinney 695 Rhinehart v. Lance 889 Rhines v. Clark 606 Rhodes v. Cincinnati 251 V. Cleveland 256 V. Otis 727 V. Weldy 76 Rice V. Austin 137 V. Des Moines 309 V. Evansville 255 V. Foster 137, 144, 146 V. Parkman 124 V. Kuddiman 189 V. State 153, 193 V. Turnpike Co. 701 Rice's Case 410 Rich V. Chicago 695 V. Flanders 216, 349, 439, 451, 455, 469 Richard Oliver, In re 144 Richards v. Raymond 223 V. Rote 127, 471 Richardson v. Boston 509 V. Monson 122 V. Morgan 614, 629 V. Roberts 521 V. State ' 541 V. Union Cong. Soc. 573 V. Vermont Central R. R. Co. 666, 069 V. Welcome 509 Riche V. Bar Harbor W. Co. 656 Richland Co. v. Lawrence Co. 228, 230, 285, 292, 334 V. Richland Center 292 Richman v. Supervisors 152 Richmond v. Daniel 636 V. Long 257, 302, 303, 306 V. McGirr 269 V. Richmond, &c. R. R. Co. 334, 347, 487 V. Supervisors 455 Richmond & A. R. R. Co. v. Lynch- burg 614 Richmond & D. R. R. Co. v. Reids- ville 608 Richmond, &c. Co. v. Rogers 666, 668, 699 Eichmond, &c. R. R. Co. v. Louisa, &c. R. R. Co. 487, 647 Ricketts v. Spraker 214, 502, 634 Riddle v. Proprietors of Looks, &c. 295, 297, 302 Ridge Street, In re 667 Rigg V. Wilton 66 Eiggin's Ex'rs v. Brown 63 Rigney v. Chicago 251, 689, 690 Riley v. Rochester 263 Riley's Case 328, 424 Rima v. Cowan 641 Rinard v. Burlington, &c. Ry. Co. 680 Ring, Matter of 425 V. Wheeler 546 Rio Grande, The ^ ^^^ 60 Bison V. Farr 79, 346, 351, 444, 445 Page Risser v. Hoyt 67, 107, 505 River Rendering Co. v. Behr 245, 247 Rivers V. Augusta 254 Roach V. Board, &c. 223 Roanoke, &c. R. R. Co. v. Davis 266 Roanoke City v. Berkowitz 688 Robards v. Brown 852 RoBards v. Lamb 16 Robb V. Connolly 423 Robbins v. Fletcher 520 V. Shelby Taxing Dist. 595, 597 V. State 396 V. Treadway 520, 541, 542 Roberts, In re 163, 168 B. CaldweU 27 V. Calvert 772, 778, 781, 785 V. Chicago 251, 667 V. Ogle 245, 726 V. People 382 V. Reilly 26 u. State 389 Robertson v. Bullions 572 V. Land Commissioner 330 V. Rockford 140, 228, 273 Robeson v. Brown 852 Robie V. Sedgwick 236 Robinson, Estate of 233 Ex parte 12, 389, 421, 607 V. Bank of Darien 178, 210 V. Bldwell 143, 211 V. Cheboygan Superv. 158 V. Commonwealth Insurance Co. 23 V. Evansville 254 V. Greenville 2-54 V. Hamilton 745 V. Howe 353, 854 V. Kalbfleish 778 V. N. Y. & Erie R. B. Co. 669 V. Oceanic S. N. Co. 25 t'. Richardson 372 V. Robinson 699 V. Schenck 216, 227 V. Skipworth 174 V. State 176 V. Swope 653 V. Ward's Ex'rs 27, 498 V. West 503 V. White 332 Eoby V. West 461 Roche V. Waters 471 Rochester v. Collins 232' V. Rush 263, 598 V. Upman 609 Rochester H. & L. R. R. Co., Matter of 686 V. N. Y., &c. Co. 686 Rochester Water Com'rs, Be 647 Rochester White Lead Co. v. Roches- ter 302, 308 Rockford, &c. R. R. Co. v. Coppinger 702 V. Hilmer 714 Rockland Water Co. v. Camden, &c. Co. 474 Rockport V. Walden 448 Rockwell V. Hubbell's Adm'rs 347, 348, 442 Ixxvi TABLE OF CASES. Page Rockwell 17. Nearing 446, 497 Eodemacher v. Milwaukee, &c. E- K. Co. 337, 713 Rodeiigas v. Savings Institation 61 Rodman «. Harcourt 749 Roe V. Deming 225 Ropthke V. Philip Best Slewing Co. 719 Rogers v. Bradshaw 692 V. Burlington 140, 269 V. Coleman 27 V, Goodwin 85 V. Greenbush 457 V. Jacob 760 V. Jones 239 V. Manuf. Imp. Co. 179 V. State 182 V. Stephens 457 V. Vass 189 Rohrbacker v. Jackson 753 Rolfs, In re 390 Roll V. Augusta 251 Rollins, Ex parte 424 Rolston V. Missouri Fund Com'rs 18 Rome V. Omberg 251 Rood V. McCargar 210 Roosevelt v. "illeyei 20 Root V. Wright 407 Root's Case 699 Roper V. Laurinburg 233 Ropes w. Clinch 1.8 Eosdeitscher, In re 149 Rose V. Hardie 726 V. Truax 166 Roseberry v. HufE 640 Eosenblat, Ex parte 26 Rosenblatt, Ex parte 222, 424, 697 Rosenburg v. Des Moines 304 Rosenheim i'. Hartsook 503 Rosier v. Hale 442 Ross V. Clinton 256 V. Crockett 235 V. Davis 654, 702 V. Duval 21 u. Irving 477 V. Lister 215 V. McLung 21 V. State 383 V. "Whitman 107 Ross's Case 828, 424 Roth V. Ehman 20 V. House of Refuge 363 Rothschild v. Grix 66 Eounds V. Mumford 251 V. Waymart 182, 183 Roundtree v. Galveston 614 Eoush i,'. Walter 732 Eoushlange v. Chicago, &c. Ey. Go. 708 Rousseau v. New Orleans 847 Eoutsong i;. Wolf 463 Eowan v. Runnels 21, 22, 99 V. State 391, 432 Rowe V. Addison 646 V. Granite Bridge Corporation 669 V. Portsmouth 256, 309 Rowland v. Kalamazoo Supts. 257 V. State 341 Royal V. Thomas Royal British Bank v. Turquand Royall, Ex parte Eozier v. Fagan Rude V, St. Louis Rue High's Case Ruggles V. Collier V. Nantucket V. People Rugh V. Ottenheimer Ruhl, Re Rulison V. Post Ruloff V. People V. State Rumney v. Keyes Rurasey v. People Bundle V. Foster Runge V. Franklin Runnels v. State Runyon v. Coster's Lessee Ruolis V. Backer Rupert V. Martz Rusch V. Davenport Rush V. Cavenaugh Rushing V. Sebree Eussell V. Anthony V. Belcher V. Burlington V. Burton ». Coolev V. Men of Devon 238, V. New York V. Perry V. Pyland V. Rumsey 441, I). State V. Whiting EusseUviUe v. White Rust V. Gott V. Lowe Ruth, In re Rutherford «. Hamilton Rutland v. Mendon Rutter V. Sullivan Ryalls V. Leader Ryan, In re V. Lynch V. Thomas Eychlicki v. St. Louis Ryckman i: Delavan Ryegate v. Wardsboro Ryerson b. Brown 657, V. Utley 174, 176, 179, Ryhiner v. Frank Page 506 272 422, 424 124 689, 690 754 249 646 737 442 136 225 384 382 413 87, 310 407 543 380 150 543, 546 347, 473 302, 303 411 179 541 507 251 163 107 297, 301 646, 739 27 773 463, 464 224 424 243 773 689 720 629 66 139 550, 651 182 167, 168 20 256 522 73 659, 661 605, 608 450 95, 167, S. Sackett v. Sackett 35 Sacramento v. Crocker 620 Sadler u. Langhara 84, 86,'214, 652, 659 SafEord v. People Sahlinger v. People Sailly V. Smith Sala V. New Orleans Sale V. First Bapt. Ch. 396 389 367 855 672 TABLE OF CASES. Ixxvii Page Salem v. Eastern R. E. Co. 742 V. May lies 246 Salem Turnpike v. Essex Co. 230 Salt Co. V. Brown 657 Salters v. Tobias 112 Saltmarsh v. Bow 309 Saltpetre Case 739 Sam Kee, In re 742 Sammons v. HoUoway 593 Sams V. King 72 San Antonio v. Jones 140 V. Lane 270 Sanborn v. Deerfleld 272 287, 605, 608 113 756, 776 347 389 548 V. Kice Sanders v. Cabaniss V. Getohell V. Hillsboro Ins. Co. V. Metcalf w Rollinson Sandford v. Nichols Sands v. Kimbark 505 V. Manistee Eiv. Imp. Go. 38, 729, 730 V. Richmond 726 Sanford u. Bennett 566, 557 San Francisco v. Canavan 228, 293 V. Liverpool, &c. Go. 607 Sangamon Co. v. Springfield 334 San Mateo Co. v. Squ. PacR. R. Co. 14, 433, 611, 618 San Mateo Waterworks v. Sharpstein 671 Sans V. Joerris 557 Santa Clara Co. p.Sou. Pac. R.R.Co. 16, 607 Santo V. State 137, 142, 202, 210, 211, 717, 718 Sater v. Burlington & M. P. Plank R. Co. 699 Satterlee v. Matthewson 320, 462, 469 V. San Francisco 168 Saul V. His Creditors 150, 182 Sauls V. Freeman 508 Saulsbury v. Ithaca 309 Saunders v. Baxter 650 V. Haynes 780 V. Mills 550, 670 V. Rodway 414 V. Springstein 616 V. Wilson 478 Savage v. Commonwealth 146 V. Walshe 93 Savannah v. Hancock 661 V. Hartridge 232 V. Spears 256 V. State 171, 210, 269 Savannah, &o. R. R. Co. v. Savannah 679 Savannah F. & W. Ry. Co. v. Geiger 179 Saving Society v. Philadelphia 239 Savings Bank v. Allen 462 V. Bates 462 Sawyer v. Alton 630 V. Corse 302 V. Insurance Co. 80 V. Northfield 255 V. Vermont, &o. R. E. Co. 713 Saxton V. St. Joseph 254 Sayles v. Davis 693 Sayre v. Wisner Page Scales V. Chattahoochee Co. 296 V. State 182, 585 Scanlan v. Childs 84, 86 Scates V King 63 Schattner v. Kansas City 251 Schee v. La Grange 502 Schenley v. Alleghany City 614 V. Commonwealth 442, 465, 460 Schippero. Aurora 234 Sohlict V. State 725 Schmidt, Ex parte 183, 390 Schneider v. Detroit Schnier v. People Schoenheit v, Nelson School Board v. Patten School Directors v. Hart School District v. Atherton V. Board of Education V. Colvin V. Fogelman V. Fuess V Gage V. Insurance Co. V. Merrills V. Stone B. Wood Schoolfield Exec. v. Lynchburg School Law Manual, In re 373 224 236 230 224 224 .308 224 153, 294 639 271 295, 296, 297 608 108 465 Schooner Paulina's Cargo v. United States 70 Schooner Rachel v. United States 443, 469 Schroers v. Fisk 61 Schuchardt v. People 749 Schular v. State 389 Schulherr v. Bordeaux 97, 98, 146 Schultz V. Milwaukee 264 Schurman v. Marley 35 Schurraeier v. St. Paul, &c. R. R. Co. 674 Scituate v. Weymouth 230 Soofield V. Watkins 634 Scotland Co. v. Thomas 270 Scott, Ex parte 135 V. Clark 190, 191 V. Coleman 28 V. Detroit Young Men's Society's Lessee 39, 46 V. Hooper 586 V. Jones 20 V. Manchester 302 V. Mather 477 u. McKinnish SgJ. V. Sandford 69 u. School District 224 V. Smart's Ex'rs 202 w. Willson 727 Scoville V. Canfleld 151 V. Cleveland 613, 623, 624 Soranton v. Penn. Coal Co. 625 Scranton School Diat., App. of 153 Soribner v. Rapp 572 Scripps V. Reilly 550, 562 Scudder v. Trenton, &c. Co. 661 Scufl3etown Fence Co. v. McAllister 509, • 601, 733 Seaman's Friend Society v. Boston 633 Seamster v. Blackstock 503 Ixxviii TABLE OF CASES. Searcy v. Grow 780 Searie v. Clark 788 Sears v. Com'rs of Warren Co. 25 V. Cottrell 106, 206, 216, 436 V. Terry 601 Secombe v. ICittelson 42, 46 V. Railroad Co. 649 Secord v. Fouteh 760 Sedgwick v. Stanton 165 Sedgwick Co. v. Bunker 230, 442 Seeley v. Bridgeport 505 Seely v. Pittsburg 625 Seery v. Viall 519 Seibert v. Lewis 347, 355 V. Linton 113 Seifert v. Brooklyn 256 Selby V. Bardons 64 Selin V. Snyder 601 Seller v. Jenkins 519 Selma, &c. R. R. Co., Ex parte 140 Selraan v. Wolfe 728 Selsby v. Redlon 458 Semayne's Case 367 Semler, Petition of 428 Semple v. Vicksburg 257 Senate File, In re 43 Senate Resolution, In re 54, 184 Sequestration Cases 354 Sergeant v. Kuhn 122 SerrUl v. Philadelphia 621 Servatius v. Picbel ■ 532 Servis v. Beatty 80 Sessions v. Crunkilton 623, 628, 733 Sessums v. Botts 222 Settle V. Van Evrea 73 Setzler v. Va. &c. R. R. Co. 702 Seven Hickory v. EUery 185 Severn v. Regina 6, 707, 724 Sewall V. Sewall 495 V. St. Paul 309 Sewell V. Board of Education 225 V. State 43 Sewickley v. Sholes 179 Sexton V. Todd 520 Seymour v. Cummins 255 V. Hartford 633 V. Turnpike Co. 266 Shackford v. Newington 279, 602 Shackleford v. Coffey 689 Shadden v. McElwee 542 Shafer v. Mumma 240, 245 ■ Shaffer v. Union Mining Co. 744 Shannon v. Frost 572, 673 Sharon Ry. Co.'s App. 686 Sharp V. Contra Costa Co. 283 V. New York 176 V. Spier 614 u. Thompson 752 Sharp's Ex'rs v. Dunavan 604 Sharpless v. Mayor, &c. 140, 279, 588, 602 Shartle v. Minneapolis 309 Shattuck V. Allen 568 V. Chandler 36 Shaw, Ex parte 423 V. Charlestown 696 V. Crawford 727 Page 604, 631 • 149 586 425 466 413 90 251 557 669 522 555 415 690 519 122 21, 448 26 309 V. Wright 500, 601, 502 Sheley v. Detroit 616, 623 Shelfer v. Gooding 546 Shelly's Appeal 215 Shenandoah V. R. R. Co. u. Griffith 63 V. Shepherd 700, 702 Shepardson v. Milwaukee, &c. R. R. Co. 220, 693, 694 Shephard v. Wheeling 108 Shepherd v. Chelsea 254 V. Commissioners 746 V. People 326 Shepherd's Fold v. Mayor, &c. N. Y. 600 Sheppard's Election Case 778 Sherbourne v. Yuba Co. 301, 303 Sheridan v. Salem 182 Sherman v. Buick 653 «. Carr 260 V. Milwaukee, &c. R. R. Co. 650 Shaw V, Dennis V. Macon V. Moore V. Nachwes V. Norfolk R. R. Corp. V. Thompson Shawnee County v. Carter Shawneetown v. Mason Sheahan v. Collins Shealy v. Chicago, &c. Ry. Co. Shearlock v. Beardsworth Sheckell v. Jackson Sheehan v. Sturges Sheehy v. Kansas City, &c. Co. Sheely v. Biggs Shehan's Heirs v. Barnett's Heirs Shelby v. Guy Sheldon, Ex parte V. Kalamazoo V. Story 162 Sherman Co. v. Simons 271, 296 Sherrard v. Lafayette Co. 269 Sherwood v. Dist. Columbia 309 V. Fleming 466 Shields v. Bennett 176, 182 V. McGregor '' 761,781 Shifflet V. Commonwealth 380 Shiner v. Jacobs 343 Shipley v. Todhunter 525 Shipp V. McGraw 519 V. Miller 20 V. State 389 Shipper ». Pennsylvania R. R. Co. 25 Shires v. Commonwealth 12 Shissler v. People 492 Shock V. McChesney 542 ShoU V. German Coal Co. 653, 663 Shonk V. Brown 127, 455, 466 Shore v. State 376 Shorter, Matter of 317 1). People 373 V. Smith 339 Shotwell V. Moore 692 Shoultz V. McPheeters 107 Shover ». State 585, 725 Shrader, Ex parte 110, 721 Shreveport v. Levy 482 TABLE OF CASES. Ixxix Page Shrunk v. Schuylkill Nav. Co. 666, 6B7 Shumway v. Bennett 110, 119, 225 V. StlUman 27 Shurbun v. Hooper 749 ShurtlefE v. Parker 532 V. Stevens 532, 550, 560, 561 V. Wiscasset 271 Sibley v. Williams 35 Sic, In re 241 Sidgreaves v. Myatt 520 Sidwell V. Evans 66 Siebold, Ex parte 241, 421, 752 Sigourney v. Sibley 506, 609 Sill V. Corning 201, 206 Silliman v. Cummins 463 Sills V. Brown 388 Silsbee u. Stockle 471,641 Silver Bow Co. v. Strombaugh 445 Silver Lake Bank v. North 151 Silvus V. State 398 Simmer v. St. Paul 256 Simmonds v. Simmonds 114 Simmons, Ex parte 423 V. Camden 251 V. Commonwealth 150 V. Holster 519 V. Wilson 636 Simmons Hardware Co. v. McGuire 597 Simms v. Railroad Co. 692 Simon v. Durham 783, 784 Simonds v. Simonds 129, 482 Simonds's Ex'rs i>. Gratz 585 Simons v. People 779 Simpson v. Bailey 176, 177 V. Savings Bank 347, 455 V. State 35, 150 Sims V. Gay 502 o. Irvine 21 V. Jackson 608 V. Sims 28 V. State 401 Sinclair ». Jackson 196, 197 Singer v. Bender 520 Singer Mfg. Co. v. McCoUock 219 Single V. Supervisors of Marathon 176, 408 Sinking Fund Cases 336 Sinks V. Eoese 149, 756 Sinton v. Ashbury 228, 283 Sioux City /;. School District 633 Sioux City, &c. R. R. Co. v. Washing- ton Co. 611 Skaggs V. State 387 Skelding v. Whitney 60, 61 Skellenger v. Smith 464 Skillman v. Chicago, &c. Ry. Co. 345, 688 Skinner, Ex parte 425 V. Hartford Bridge Co. 251, 667 Slack V. Jacob 69, 70, 216, 217 V. Maysville, &c. R. R. Co. 77, 140, 273, 601 Slade V. Slade 61 Slater, Ex parte 374 Slatten v. Des Moines Valley R. R. Co. 668, 703 Slaughter v. Commonwealth 25 V. Louisville 607 Page Slaughter ». People 241 Slaughter-House Cases 11, 15, 25, 342, 343, 858, 489, 707 Slauson v. Racine 212 Slave Grace, The 362 Slaven v. Wheeler 509 Slayton v. Hulings 89 Sleght V. Kane 316 Slemmer v. Wright 411 Slinger v. Henneman 140, 146 Sloan V. Biemiller 642 1-. Cooper 61 t. Pacific R. R. Co. 335, 710, 711 V. State 228 Smails v. White 176 Small V. Danville 306 Smalley v. Anderson 520 Sniead v. Indianapolis, &o. R. R. Co. 270 Smeaton v. Martin 663, 692 Smith, Ex parte 25, 26, 782 Matter of 29 Petition of 424 u. Adrian 145 „. Alabama 595, 716, 723 V. Appleton 355 V. Ballantyne 63 V. Boliler 174 V. Brown 362 V. Bryan 442 V. Cheshire 269 V. Clark Co. 272 V. Cleveland 463, 470 V. Commonwealth 177, 178, 380 V. Connelly 659 V. Eastern R. R. Co. 713 V. Frisbie 504 V. Good 46 V. Gould 362 V. Hard 456 V. Howard 542 V. Hoyt 183, 190 i;. Hunter 20 ». Inge 196 V. JanesviUe 142, 143 u. Judge 108 V. Kingston 624, 726 V. Knoxville 244 V. Leavenworth 309 V. LevinuB 227 V. Long 407 V. Louisville 609 V. Macon 202 B. Maryland 29 V. McCarthy 139, 197 V. Merchand's Ex'rs 458 V. Moore 749 V. Morrison 188, 450 V. Morse 233, 249 V. Nelson 672 V. Norment 136 V. Packard 346, 347, 354 V. People 80, 388 0. Rice 500 V. Scott 551 V. Sherry 295, 449, 471, 617 „. Short 592 Ixxx TABLE OF CASES. Page Smith V. Shriver 22 V. Silence 521 V. Smith 27, 187, 495 520 V. Speed 196 V. State 26, 134 ,403 V. Stewart 519 V. Strother 108 ». Sworrpstedt 573 V. Thoii(as 524 V. Thursby 70 V. Township Board 224 V. Trimble 504 V. Van Gilder 347 V. Washington 251 ,667 Smith, Mary, Case of 881 Smither v. Campbell 162 Smoot V. Wetumpka 302 Smyth V. McMasters 773 V. Titcomb 139 Sneider v. Heidelberger 849 Snell, In re 425 Snow r. Fitchburg 629 Snowhill V. Snowhill 122 Snyder v. Andrews 568 V. Bull 465 V. Tulton 570 V. Pennsylvania R. E. Co. 674 V. Rockport 251 Society, &c. v Wheeler 22, 450, 456, 478 Society for Savings v. Coite 591 Society of Scriveners v. Brooking 242 Sohier v. Massachusetts Hospital 122 V. Trinity Church ^572 Solomon v. Cartersville 184 V. Commissioners . 185 V. Oscoda ^ 640 Somerset & Stoystown Road 182 Somerville v. Hawkins 523 Somerville & Easton R. R. Co. ads. Doughty 698, 700, 702 Sommers v- Johnson 348 Sommersett's Case 362 Soon Hing v. Crowley 221 Soper V. Harvard College 744 Sorchan v. Brooklyn 93 Sorocco V. Geary 646, 739 Sortwell V. Hughes 719 South & North Alabama R. R. Co. v. Morris 210, 481 Southard v. Central R. R. Co. 465 South Carolina R. R. Co. v. Steiner 674, 676 South Ottawa v. Perkins 162, 270 Southport II. Ogden 239 Southwark Bank v. Commonwealth 70, 162 South-western R. R. Co. v. Paulk 715 V. Telegraph Co. 692, 694 Southwick V. Southwfck 451 Southworth ». Palmyra & Jackson- burg R. R. Co. 168 Soutter V. Madison 855 Sovereign v. State 181 Sowders v. Edmunds 500 Spaida v. Barrett 546 Spangler ». Jacoby 95, 162, 168 Spangler's Case 18, 422 Page Sparhawk v. Sparhawk 114, 132 Sparrow v, Kingman 67 Spaulding v. Lowell 744 Spealman v. Railroad Co. 713 Spears v. State 382 Specht V. Commonwealth 585, 725 Speer v. Plank Road Co. 184 V. School Directors 278, 601 Speidel v. Schlosser 100 Speight V. People 153 Spencer v. Board of Registration 753 V. Dearth 61, 63 V. McMasters 620 V. Merchant 599, 601, 617, 624 V. State 70, 71, 182, 183 Spengler v. Trowbridge 232 Sperry v. Willard 161 Spiering v. Andrae 541 Spies V. Illinois 29, 391 Spill V. Maule 560 Spiller V. Wobum 224, 577 Spillman v. Williams 603 Splane v. Commonwealth 725 Spooner v. McConnell 37, 38, 39, 148 Sporrer v. Eifler 11, 593 Spragg V. Shriver 127 Sprague v. Birdsall 488 V. Brown 79 V. Norway 778 0. Tripp 257 V. Worcester 668, 669 Spraigue v. Thompson 595 Sprecker v. Wakeley 847, 348, 448 Sprigg V. Telegraph Co. 336 Spriggins v. Houghton 776 Spring V, Russell 601 Springer v. Foster 22, 357 V. United States 589, 639 Springfield v. Connecticut River R. R. Co. 647, 672, 673 V. Doyle 304, 309 V. Green 614 V. Le Claire 302, 308 Springfield, &c. R. R. Co. v. Cold Spring 269 V. Hall 649 Spring Valley Water Works v. San Francisco 487 V. San Mateo W. Works 664 V. Schottler 836 Squire v. Mudgett 349 Staats V. Washington 244 Stackhouse v. Lafayette 302 Stackpole V. Hennen 546 Stacy V. Vermont Central R. R. Co. 650 St. Albans v. Bush 498 Stamp V. Cass Co. 261 Stanchfield v. Newton 256 Standiford v. Wingate 332 Stanfield v. Boyer 520 StanfiU V. Court of Co. Rer. 227 Stanford v. Worn 649 Staniford i*. Barry 113 Stanley, Ex parte 378 V. Colt 122 V. Davenport 680, 686 TABLE OF CASES. Ixxxi Stanley v. Stanley V. State V. Webb 550, Stanton v. Metropolitan K. B. Co. Starbuck v. Murray Stariu v. Genoa Starkweather v. Bible Society Starr v. Camden, &c. B. R. Co. ' V. Pease State, Ex parte V. Adams 114, 816, 818, V. Agee V. Ah Chew V. Ah Sam . Albee' , Aldrich . Algood . AUen 396, 484, , AUmond . Alman . Ambs , Amery V. Anderson 153, V. Arlin V. Armington V. Armstrong V. Ashley V. Askew V. Atwood V. Avery ». Auditor V. Babcock V. Bailey V. Baker 79, V. Balch V. Baltimore, &c. R. R. Co. V. Bank V. Bank of South Carolina V. Banker's, &c. Association V. Barbee V. Barker V. Barnes I). Barnett V. Barrels of Liquor V. Barrett V. Bartlett V. Bate V. Battle V. Beal V. Beattie V. Behimer V. Beneke V. Benham V. Bennett V. Berg V. Berka V. Berkley V. Berlin V. Bernoudy V. Berry V. Beswick V. Bibb St. Ch. V. Bienvenu V. Binder V. Blaisdell V. Blasdel 150, 137, Page 715 150 551, 552 726 27, 498 140, 269 151 678, 685 130, 138 98 336, 788 597 743 171, 175 391 755 163, 172 606, 568 716 888, 399 585, 725 213 390, 748 321, 822 495 119 201 79 455 785 444, 455 100, 233 189 757, 758 541 444, 585 351 351 178 77, 455 330, 725 80 29 719 414 384, 385 788 400 385 246 401 142, 505 401 150, 609 783, 784 172 379 479, 718 318 182 887 573 582 748, 779 400 70 Page State ». Bloom 752 V. Blossom 751 V. Board of Education 224, 225, 588 V. Board of Health V. Board of Liquidation I'. Bond V. Bonnell V- Bonney V. Boone County Court V. Borowsky V. Bostick V. Boswell V. Bott V. Bowers V. Braoco V. Branin V. Brassfield V. Brecht V. Brennan's Liquors V. Brewster V, Brockman V. Brooks V. Brown V. Brunetto V. Brunst V. Buchanan V. Bundy V. Banker V. Burbridge V. Burgoyne V. Burlington V. Burnett 721 224 189, 757 235 491 65 391 382 374 585 173, 175 597 228, 229 748 400 372, 605 73,79 882 879, 400 107, 150, 163, 394 388 332 35,54 375 237 778 341 255 .. __ 786 w.Burnham 525,532,6^,549,560,570 V. Bums 394 V. Burr 411 V. Butman 557 V. Butt 107 V. Butts 757 V. Buzine 26 V. Buzzard 427 V. Cain 181, 182 V. Callendine 399 B. Callicut 740, 746 II. Camden Common Pleas 153 w. Cameron 384 V. Campbell 35, 388, 741 V. Cape Girardeau, &c. E.R. Co. 32, 216 V Cardozo V. Carew u. Carman V. Carr V. Carro V. Carroll V. Cassidy v.. Cavers V. Cawood V. Chambers V, Champeau V. Chandler V. Charleston V. Chicago, &c. Ey. Co. V. Church V. Churchill V. Cincinnati 221 854 391 810 29 751, 762, 777 243, 609 770, 783 35 381 399 28, 680, 581 696, 623, 636, 783 670, 737 773 505 294 V. Cincinnati Gas Co. 258, 485, 672, 679 V. Circuit Court 146, 179 / IXXXU TABLE OF CASES. Page Page State V. City Council of Charleston 733 State V. Demorest 279 V. Clark 183 244, 400 V. Denny 134, 162, 183, 208, 212, V. Clarke 210, 239. 245 749, 780 282, 748 V, Cleaves 384 V. Dent 17, 745 II. Clerk of Passaic 783 785, 788 v. Denton 392 i;. Click 98 a. De Ranee 375 V. Clinton 386 ». Dews 332 V, Coahoma Co- 185, 188 V. Dlerberger 752 i>. Cobaugh 717 V. Dimick 149 V. Coffee 883 V, District Court 145, G17, 692 V. Coleman 375 V. Divine 875 V, Coleman & Maxoy 434 V. Dodson 134 V. Colgate 398 V. Doherty 128 134, 434, 471 V. Collector of Jersey City 684 V Dombaugh 211 V. Collier - 773 V. Donehey 718 V. Commissioners 182, 270 V. Donewirth 785 V. Com'rs of Baltimore 210 t>. Donovan 153 0. Com'rs of Clinton Co. 140 w. Doron 70,81 V. Com'rs of Hancock 140 v- Dortch 785 V. Com'rs of Ormsby Co. 107 V. Douglass 332 . r. Com'rs of Perry Co. 212 V. Dousman 212 V. Com'rs of R. E. Taxation 336 V. Draper 182, 332, 788 V. Com'rs of School, &e. Lands 354 u, Dufty 481, 482, 483 V. Common Council of Madison 233 V. Dunning 135 V. Common Fleas 585 «. Dwyer 239 V. Cone 753 V. Easterbrook 211 V. Congdon 389 V. Echols 748, 758 V, Connor 399 V. Elliott 888 V, Constantine 780 V Ellis 150, 190 V. Constitution 724 V. Elting 774 V, Cooke 146, 341 V, Elwood 764, 767, 770 V. Cooler 327 V. Emery 400 V. Cooper 401 V. Endom 608 V. Copeland 137 146,210 V. Ephraim 399, 400 V, Copp 389 V. Estabrook 608 c. Corner 757 V, Everett 390 V. Corson 827 V. Fagan 186, 221 V. County Canvassers 783 0. Farris 573 V. County Commissioners 784 V. Feibleman 749 V. County Com'rs of Baltimore 93, 479 V. Felton 875 V. County Court 153, 683 V. Ferguson 231 282, 248, 455 V. County Court of Boone 152 V. Fetter 785 V. County Judge 784 V. Field 142, 146 V. County Judge of Davis 171, 178 V. Findley 754 V. Covington 133, 180 V. Fire Creek, &c Co. 199, 488 V, Cowan 228, 240 V. Fisher 744 V. Cox 210, 390 V. Fiske 249 V. Craig 508 V. Fitzgerald 388 I). Crane 509 V. Fitzpatrick 369, 506 V. Crawford 375 V. Fleming 114 V. Creeden 718 V. Foley 134, 283, 354, 726 V. Crenshaw 243 0. Fooks 378 V. Cross 182 V. Forshner 472 V. Croteau 396 V. Fosdick 25 V. CrowgU 573 u. Foster 784 V. Crummey 240 t>. Framburg 888 V. Cumberland R. R, Co. 607 V. Francis 145, 158, 162, 748, 785 V. Cummings 35, 150, 318 V. Franklin Falls Co. 450 V. Curtis 400 V- Franks 772 V. Daley 443 V. Frederic 388 V. Danforth 402 V, Freeman 241, 244, 388 V. Daniels 776 V. Frew 555 0. Davis 188, 390 V. Fritz 504 V. Dawson 407 u. Fry 132 V. Dean 614 V. Fuller 610, 623. V. De Gress 749 V. Gaffney 598 TABLE OF CASES. Ixxxiii Page Page State V. Gaines 180 State V. Hoagland 145, 153, 175 V. Gammon 71 V. Hoboken 242, 243 V. Garesche 318 V. Hockett 110 V. Garton 593 V, Holcomb 245 V. Garvey 884. 399 V. Holden 139 i». Gates 158, 767 V. HoUaday 99 V. Gatzweiler 846 w. Hooker 888 V. George 748 ». Hopper , 110, 113 V. Georgia Medical Society 239 V. Hosmer 504 V. Gerger 181 V. Hoyt 376 V. Gibbs 784 ». Hudson Co. 301 V. Gibson 890, 481 ». Hudson Co. Com'rs 137, 632 V. Giles 780 V. Hufiord 26 0. Gilman 25, 158, 718 V. Humphreys 749 V. Gleason 108 V, Hundley 875 V. Glenn 84 , 94, 183, 390 V. Hunter 282 V. Goetze 759 V. Hurley 375 b, GofE 749 V. Hutt 748 V. Goldstucker 79 V. 111. Centr. R. R. Co. 171 V. Good 780 V. Indiana & 0. G. & M. Co. 724 ». Goodwill 483 V. Indianapolis 480, 633 V. Gordon 240 V. Ingerso [ 181 V. Governor (5 Ohio St. 186 V. Ins. Co, 607 V. Governor (25 N. J.) 186, 783 V. Jackson 279, 481, 691 V. Governor (89 Mo.) 136 V, Jarrett 158 V. Graham 224 V. Jay 568 ^. Graves 250, 252, 386, 691, 693 V. Jetcoat 389 V. Green 899, 484, 639, 748 V. Jennings 228 V. Greer 335, 455 V. Jersey City 241, 248, 249, 614, V. Gregory 585 712, 726 V. GrifEey 765, 769 V. Johnson 94, 150,388,455,606,780, V. Guild 381, 382, 883 785, 786 V. Gurney 176, 505 V. Jones (5' Ala .) 896, 897 V. Gut 176 V. Jones (19 lad.) 236. 759, 778 V. Gutierrez 206 V. Jones (21 Md.) 447 V. Guttenberg 457 V. Jones 50 N. H.) 375 V. Haben 284, 290, 605 V. Jones (7 S. E. Rep.) 389 0. Hairston 481 V. Judge 190, 206, 509, 585, 788 . Hall 26 V. Judges 120 i;. Hallock 78 V. Jumel 427 V. Hammer 153 V. Justices of Middlesex 785 V. Hammonton 259 V. Kalb 832 V. Hannibal, &c. B. R. Co. 632 V. Kanouse 394 V. Hardin 385 V. Kansas City 633, 702 V. Harris 281 V. Kason 400 V. Harrison 176, 235, 783, 785 V. Eattleman 401 V. Hawkins 134, 153 V. Kaufman 391 V. Hawthorn 352 1). Keenan 742 V. Hayden 423 V. Keith 45, 241, 321 V. Hayes 142 V. Kelly 149, 888 V. Hayne 608, 783 V. Kelsey 64,84 V. Hays 221 V. Kemp 394 V. Hebrew Congregation 573 V. Kempf 158 V. Henderson 181 V. Kennedy 718 V. Henry 398 V. Kenney 481 V. Heman 456 V. Kennon 80,134 V. Herod 243 V. Kettle 401 V. Heyward 335 V. Kiesewetter 97, 183 V. Heywood 173 0. King 71 V. Hilbert 337, 338 V. Kinsella 179 V. HiU 783, 784 V. Kirke 410, 749 V. Hilmantel 757, 763. 764, 781, 788, V. Kirkley 138, 234 791 V. Kirkwood 136 V. Hinman 484 V. Kirschner 184 0. Hitchcock 55, 152 V. Klein 609 Lxxxiv TABLE OF CASES. Page Page State V. Elinger 875 State t». Medbury 25, 490 i;. Knight 149 V. Merchants' Tns. Co. 620 V, Krebs 487 V. Messenger 450, 692 V. Eruttschnitt 200 V. Messmore 332 V, Lafayette Co. Court 176, 179 V. Metzger 500, 770 V. Lamberton 785 0. Middleham 373 V. Lancaster 25 V, MikeseU 399 V. Lancaster Co. 178, 748 V. Miller 98, 176, 178, 229, 425, 472 V. Lash 76 V. MilU 632 V. Lathrop 607 V. Milwaukee Gas Co. 485 V. Laverack 672, 682, 684 V. Mitchell 427 V. Lawrence 385 V, Mobile 684, 685 I). Lean 92, 190 V. Moffltt 136 162, 728 V. Learned 327 V. Monahan 153 i;. Le Blanch .150 ». Montclair K. Co. 685 V. Lee 394 V. Montgomery 271 V. Lehre 517, 521, 569 V. Mooney 391 V. Leiber 744 V. Moore 480 V. Leonard 224 V. Morrill 389, 555 V. Lewis 786 ». Morris 341 V. Linn Co. Court , 140 V. Morris Co. 146 u, Litchfield 371 V. Morrison 188 V. Little 399 V. Morristown 230 V. Lockwood 390 w. Mott 242,742 V. Lonsdale 524 V. Munchrat)i 391 V. Losatee 171 V. Murray 748, 780 V. Lowe 375 V. Myrick 389 V. Lowhome 384 w.Neal 44, 318, 754 V. Lowry 399 ». Ned 899 V. Ludwig 240, 244 V. Nelson 899 V. Lupton 506 V. Newark 176, 177, 466, 460, 464, V. Lurch 380 639, 733 ». Lyles 202 V, New Brunswick 107 V. Mace 73,81 V. New Haven, &c. Co. 138, 709 V. Mack 245 V. New Orleans 851 444,610 V. Macon Co. Court 77 V. Newton 398 V. Main 149, 150 V. Nichols 135 V. Maine Cent. R. E. Co. ' 336 V. Noble 75, 107, 115 V. Manning 327, 469 «. Nolan 374 V Mansfield 390 V. North 633 1), Marler 875 V. Northern Central B. E. Co. 114 V. Marlow 785 V. Norvell 399, 400 V. Marshall 741 V. Norwood 443 464, 469 V. Martin 401 K. Noyes 125,143,145 ,227, 335, 341, V. Mason 772 647 710, 711 V. Mathews 709 V. Ober 386 V. Matthews 159, 389 V. O'Brien 621 V. Maxwell 634 V. O'iJay 778 V. Mayhew 84, 85, 435 <;. O'Flaherty 327, 374 V. Maynard 107 0. Oleson 240 V. Mayor, &c. 224, 252, 748 V. Olin 764 , 772, 790 V. Mayor of Newark 336, 485 a. Oliver 888 V. McAdoo 318 t,. O'Neil 403 , 718, 719 V. McBride 43. 168 V. O'NieU 144, 227 V. MoCann 98, 154, 178, 481 V. Orton 423 V. McClaugherty 389, 411, 437 V. Orvis 235, 759 V. McConnell 162, 167 V, Osawkee 268, 601 V. McCracken 176, 177 V. Osborne 225 V. MoDaniel 171, 781 V. Oskins 147 V. McGinley 93 V. Palmer 178 V. McGinnis 393 V. Parker 187, 138, 143, 144, 4O0, 633 0. McGuire 416 V. Parkinson 83 V. Mclver 694 V. Passaic 443 V. McKenna 374 V. Paterson (34 N. J.) 249 II. McNieU 139 1*. Patterson (45 Vt.) 398 V. Mead 183 0. Patterson 63 N. C) 398 TABLE OF CASES. Ixxxv State V. Payne . Peace . Peacock ■ Fendergrasa . Pennoyer Perth Amboy Peters Peterson Pettineli Phalen Philadelphia, &c. PhilUps Pierce Pike Piland Pinckney Pittsburg, &c. Co. Plainfield Piatt Poison Pond Portage Powder Mfg. Co. Pratt Prescott Price Prichard Prince Pritchard Pugb Purdy Quarrel Quick Quimby Railroad Co. Rankin Ranscher Ranson Read Bedemeier Redman Reed Reid Reis Reynolds Rice Rich Richards Richardson Richland Richmond Richter Robb Bobbins Roberts Robinson 202, RockafeUow Rodman Rogers Rolle Rolling Boss Rutledge Ryan Sackett 376 State 396 V 873 V. 415 V 484 V. 693 V 135 V. 163, 890, 504 V. 235 V. 341, 352 V. R. R. Co. 596 V. 504,761 0. 97, 765, 788 c. 375 V. 450 V. 455 V. 694 V. 639 V. 155, 162 V. 391 V. 146, 163 V. 627 V. 182 V. 375, 597 V. 718 V. 173 1). 445 e. 400 i>. 399 V. 153, 212 V. 772, 773, 774 V. 391 V, 388 V. 472 C. 723, 725 V. 29, 241, 399 V. 744 V. 171, 172 V. 391 V. 376 V. 400 V, 399 V. 106, 427 629 V. 139, 143, 394 V. 396 V. 197 V. 697 V. 26 0. 456 V. 335 V. 26 V. 776 V. 152 V. 243, '383 V. 216,392,894,717, V. 719, 744 V. 376 V, 783, 784 V. 97, 183, 691 V. 609 V. 35 V. 401 V, 772 V. 17, 327, 890 V. 391 V- ) V. Saunders . Sauvinet . Savannah . Scheele . School Board Fund . School Dist. . Scott . Seavey . Seay . Seymour . Sliadle . Shattuck . Shelby . SheUy . Shores . Shumpert . Silver , Simondg , Simons . Simpson , Skirving . Slack . Sleviu , Smily . Smith (1 Bailey) , Smith (35 Minn.) . Smith (53 Mo.) . Smith (90 Mo.) . Smith (44 Ohio) Smith (44 Tex.) Smith (14 Wis.) Smytli , Snow Page 286, 388 134 241 873 190 450 139, 151, 502, 648 282 150 660, 691 176 424 427 399 187 29 171, 172, 174 227 119, 137, 430, 434 399 759 400 847, 473 620 186 172 375 South Carolina B. R. Co. 154, 162, 204, 282 182 ^48, 780 741 210, 369, 396 608 Spier 399, 400 Squires 162, 176, 179, 455, 469 Staley 382 Stanley 134 Starling 375 State Canvassers 783 State Med. Kx. Board 745 Staten 79, 136, 204, 316, 430, 433, 437, 445 Steers 783 Sterling 341 Stewart 27, 153, 390, 663 . St. Joseph 779 St. Louis 748 St. Louis, &c. Ey. Co. 456 , St. Louis Cathedral 177 , St. Louis Co. Court 292 , Stone 891 . Stout 613 . Strauder 376 . Strauss 743 Street CommissioneFS 741 , Stucker 717 . Studt 183 . Stumpf 778 . Sullivan 468 . Summons 376 . Sumter Co. 152 Supervisors of Portage 774 . Sutfln 400 Sutterfield 272, 748 Swearingei) 780, Ixxxvi TABLE OF CASES. Page State V. Swift 44, 162, 748 V. Swisher 137, 142 V. Swope 26 1). Symonds 79, 318, 754 V. Syphrett 568 V. Tait 394 V. Tally 396 V. Tappan 260, 281, 285, 604, 605 V. Taylor 394 V. Telephone Co. 12 V. Thomas (47 Conn.) 387 0. Thomas (64 N. C.) 387 V. Thompson 77 V. Thornton 398 II. Thurston 182 V. Tiedemann 224 V. Timme 43 V. Tipton 389 V. Tisdale 396 V. Tombeckbee Bank 335, 355 V. Topeka 239, 740 V. Towle 424 V. Treasurer 182 V. Trenton 153, 672 V. Trumpf 780 It. Trustees of Union 140 V. Tucker 152 V. Tufly 43, 180, 747 V. Turner 492 V. Tuttle 210, 754, 785 V. Underwood 150 V. Union 172, 174, 457, 460 V. Vaigneur 383 V. Vail 506, 780 V. Van Baumbach 331 V. Vanderbilt 225 V. Vanderpool 26 V. Vandersluis 745 V. Van Home 140 V. Vansant 888 V. Wabash, &o. By. Co. 714 V. Walker 400 V. Wapello Co. 268, 273 V. Ward 386, 400 V. Warford 181 V. Warmoth 186 V. Warren 465, 785 V. Washington 400 V. Watson 761 V. Webber 223 1. Weir 137, 144, 146 V. Welch 241, 244 V. Wentworth 386 V. West 374 ». Weston 100, 749 V. Wheeler 210, 717, 718, 719 V. Whisner 186 V. Whitcomb 137 V. White 389, 570, 577 V. Whitworth 67 V. Wiggin 697 V. Wilburn 427 V. Wilcox 187, 139, 142, 146, 227 V. WilkesTille 278 V. Wilkinson 396 V. Williams 79, 245, 324, 327, 870, 767 Page State V. Wilmington City Council 749 V. Wilson 152, 327, 387, 749, 788 332 V. Wiltz V. Winkelmeier V. Winton V. Wiseman V. Witham 0. Woodfin V. Woodruff V. Woodruff, &c. Co. i>. Woodward u. Worden V. Wright V. Young 748 411 400 386 389 41 596 99, 341 391 157, 182, 472 173, 178, 179, 760 92 748 23 607 55 243 595 State Auditor v. Jackson Co. State Bank v. Curran V. Knoop State Board v. Central B. R. Co. State Census, In re State Center v. Barenstein State Freight Tax Case Staten Isl. Trans. Co., Matter of 652, 666 State Railroad Tax Cases 607 State Tax on Foreign-Held Bonds 597, 598, 615 State Tonnage Tax Cases 596 State Treasurer v. Auditor General 615 Stayton v. Hulings 93 St. CJiarles v. Nolle 615 St. Clair v. Cox 27 Steamship Co. v. JoUiffe 722, 724 V. Port Wardens 596 Stearns v. Gittings 447, 449, 450 Stebbins v. Com'rs Pueblo Co. 112 V. Jennings 238 Steckert v. East Saginaw 168 Steele v. Boston 254 V. Calhoun 761, 779 V. County Com'rs 658 V. Gellatly 441 V. Smith 28 V. Southwick • 520, 521 V. Spruance 478 Stein V. Burden 646 V. Mobile 140, 345 Steinecke v. Marx 542 Steiner v. Ray 741 Steines v. Franklin Co. 272 Steinman, Ex parte 411, 437 Steketee v. Kimm 520 Stemper v. Higgins 779, 788 Stephens ». People 758 Sterling v. Jackson 687 V. Jngenheimer 519 Sterling's Appeal 674 Sternberger v. Railroad Co. 737 Stetson V. Kempton 228, 275, 640 Stettinus ». United States , 396 Steuart v. Baltimore 505 Stevens v, Andrews 354 V. Middlesex Canal 662 V. Paterson, &c. R. R. Co. 670 V. Rutland, &o. R. R. Co. 837 V. Sampson 550 V. State 375, 437 Stevenson v. Lexington 254 TABLE OF CASES. Ixxxvii Page Stevenson v. School Directors 224 Steward ti. Jefierson 139 Stewart v. Blaine 159 V. Clinton 256, 667 V. Father Mathew Society 178 V. Griffith 122 V. Hartman 652 V. Hunter 435 V. New Orleans 303 V. Peyton 784 V. Potts ■ 608 V. Eiopell 171 V. Ripon 309 V. Stewart 27 I. Supervisors of Polk Co. 140 V. Swift Spec. Co. 520 V. Trevor 610 Sticknoth's Estate 463, 466 Stiefel V. Maryland Inst. 178 Stiles V. Nokes 550, 551 Stiltz V. Indianapolis 617 Stilwell V. Kellogg 504 Stine V. Bennett 188 Stingle V Nevel 183 Stinson v. Smith 185 Stipp V. Brown 448 Stirling v. Winter 448 Stitzell V Reynolds 619 St. Johnsbury v. Thompson 239, 243 St. Joseph V Anthony 614 V. O'Donohue 614, 624 V. Rogers 270 St. Joseph, &c. R. E. Co. v. Buchanan County Court 79, 140 V. Callender . 650 St< Louis V. Alexander 140 V. Allen 228, 230 V. Bell Tel. Co. 232 V. Bentz 239, 240, 245 V. Bowler 609 V. Cafferata 228, 239, 240, 725 V. Foster 97 V. Goebel 241 a. Green 244 V. Gurno 251 .,. Knox 241 V. Deters 629 V. Russell 227, 228, 229, 294 V. Schnuckelberg 741 V. Schoenbusch 240 V. Shields 152 V. Spiegel 246 V. St. Louis R. R. Co. 246 V Tiefel 171, 174 V. Weber 241, 244 St. Louis & S. F. R. R. Co. v. Evans, &c. Brick Co. 694 St. Louis, &c. Co. V. Harbine 348 St. Louis, &c. R. R. Co. v. Clark 70 V. Lof tin 3-'8 V. Richardson 701 V. Teters ^^^ St. Louis, &c. Ry Co. v. Vickers 18 St. Louis I. M. &c. Co. V. Berry 338 V. McCormick 151 St. Maiy's Industrial School v Brown 600 Page Stock V. Boston 309 Stookbridge v. West Stockbridge 238 Stockdale v. Hansard 161, 563, 564 V. State 427 Stocking V. Hunt 346, 350, 443 V. State 201, 216, 396 Stockton V. Whitmore 649 Stockton, &c. R. R. Co. v. Stockton 140 Stockwell V. White Lake 507 Stoddard v. Martin 773 Stoddart v. Smith 202 Stokes, Tn re 4:^3 V. New York 245 V. People .327 V. Scott Co. 268 Stone V. Basset 358 i». Cliarlestown 227, 230 V. Cooper 521 V. Dana 368 V. Graves 725 V. Inh. of Heath 702 V. Mississippi ' 148, 341 V. New York 646 t>. School District 235 Stoner v. Flournoy ■ 617 Stoney v. Life Ins. Co. 270 Storey v. Challands 524 V. People 389, 555 V. Wallace 550 Storrs V. Utica 308 Story V. Furman 346, 348 w.NowYorkElevatedRailwayCo. 681 Stoughton V. State 732 Stout V. Hyatt 37 V, Keyes 35 Stover V. People 385 Stow V. Wise 235 Stowell V. Lord Zoucli 72 St. Paul V. Coulter 248 V. GilflUan 742 V. Seitz 308 V. Smith 244 V. Traeger 241, 244, 247 V. Umstetter 107 St. Paula N. P. Ry. Co., In re 646, 661, 663 St. Paul, &c. R. R. Co. v. Gardner 504 V. Parcher ' 338 St. Paul, M. & M. Ry. Co. v. Minne- apohs 686 St. Paul Un. Depot Co. v. St. Paul 686 Strader v. Graham 37 Strafford v. Sharon 444 Strahl, Ex parte 424 Strang, Ex parte 751, 777 Strait V. Strait 496 Stratton v. Collins 610, 632, 641 Strauch v. Shoemaker 456 Strauder v. West Virginia 16, 480, 488 Strauss v. Heiss 188 V. Meyer 542, 543, 560 V. Pontiac 247 Street v. New Orleans 293 Street RailroadCo. v. Morrow 456, 598. 631 Street Railway v. Cumminsville 669, 679, Streety v. Wood 532, 533 Ixxxviii TABLE OF CASES. Page Streubel v. Milwaukee, &o. R. R. Co. 443 Striker v. Kelley 93 Stringfellow v. State 381 Strode v. Washer 452 Stroebel v. Wliitney 619 Strong V, Clem 441 V. Daniel 222 V. State 821 Strosser v. Fort Wayne 467 Stroud V. Philadelphia 629, 726 Strout V. Proctor 411 Struthers v. R. R. Co. 674 Stryker v. Goodnow 22 St. Tammany Water Works v. New Orleans Water Works 328, 843 Stuart V. Blair 750 V. Clark 727 V. Commonwealth 401 V. Hamilton 73 V. KinseUa 176, 179 V, Laird 82, 84 V. Mechanics', &c. Bank 507 V. Palmer 617 V. School District 223 V. Warren 467 Stubbs V. Lea 748 Stump V. Hornback 478 Stupp, Be 423 Sturdevant v. Norris 441 Sturgeon v. Kitchens 175 V. Korte 765 Sturges V. Carter 456, 631 V. Crowninsbield 29, 70, 347, 348, 349, 366, 449 Sturgis V. Hull 455 V. SpofEord 469 Sturm V. Fleming 449 Sturoe's Case 555 Sturtevant v. State 425 Stuyvesant v. New York 238, 714 Sublett V. Bedwell 749, 780 Succession of Lanzetti 175 Succession of Tanner 107 Succession of Townsend 496 Sue, The 712 Suesenbaoh v. Wagner 27 Suffolk Witches, Case of 381 SuUings V. Shakespeare 670 Sullivan v. Adams 220 V. Blackwell 500 V. Oneida 242, 327, 369, 375 Summers v. Com'rs Daviess Co. 267 Summons v. State 388 Sumner v. Beeler 222 V. Buel 522 V. Hicks 21 V. Miller 443 Sunberg v. Babcock 436 Sunbury & Erie R. R. Co. v. Cooper 221 V. Hummel ' 669 Sunderlin v. Bradstreet 524 Sun Mutual Ins. Co. v. Board of Liquidation 224 u. New York 171,218 Supervisors v. Davis 788 V. People 163 Page Supervisors v. United States 22 V. Wisconsin Cent. K. R. Co. 457 Supervisors, &c. v. Keenan 162 V. People 174 Supervisors of Doddridge v. Stout 99, 649 Supervisors of Du Page v. People 778 Supervisors of Election 107, 110 Supervisors of Iroquois v. Keady 189 Supervisors of Jackson v. Brush 249, 272 Supervisors of Knox Co. u.' Davis 210 Supervisors of Sadsbury v. Dennis 283 Supervisors of Schuyler Co. i'. Peo- ple 167, 168 Surgett V, Lapice 84 Susquehanna Canal Co. v. Wright 669 Susquehanna Depot v. Barry 280 V. Simmons 308 Sutherland v. De Leon 442 Sutton V. Asken 441 V. Board 301 V. State 407 V. Tiller 662 Sutton Hospital, Case of 238 Sutton's Heirs v. Louisville 701 Suydam v. Moore 709, 713 V. Williamson 21, 22, 120 Suydham v. Broadnax 357 Swain v. McRae 785 V. Mizner 364 Swan V. Williams 37, 645, 662 Swann, Ex parte 403 V. Buck 97, 162, 182 Swan Point Cem. v. Tripp 633 Swart V. Kimball - 390, 391 Swartwout v. Railroad Co. 182 Swayze v. Hull 166 Swearingen, fe parte 26 Sweeney v. Baker 537, 541 V. Chicago, &c. Ry. Co. 730 V. McLeod 166 Swepston V. Barton 778, 780, 781 Swift V. Fletcher 346 V. Newport 616 V. Sutphin 721 V. Tousey 35 V. Tyson 23, 108 V. United States 86 V. Williamsburg 233, 272 Swindle v. Brooks 472 Sydnor v. Palmer 113 Symonds v. Carter 520 V. Clay Co. 301 Syracuse Bank v. Davis 467, 461 Tabor v. Cook 504 Tafoya v. Garcia 183 Taft V. Adams 332 Tainter v. Worcester 234, 254 Tail's Exec. v. Central Lunatic Asy- lum 339, 663 Talbot V. Dent 140, 264 V. Hudson 216, 599, 656, 693 TABLE OF CASES, Ixxxix Page Talbot 0. Talbot 441 V. Taunton 3oy Talkington v. Turner 767 Tallman v. JanesvlUe 465, 470 Tanner v. Albion 227, 742 V. Alliance 719 Tappan v. School District 224 Tarble's Case 4, 18, 422 Tarbox v. Sughrue 772, 780, 781 Tarleton v. Baker 773 Tarlton o. Fisher 161 V. Peggs 186 Tarpley v. Hamer 347 Tash V. Adams 261 Tate V. Bell 218 u. Bailroad Oo. 256 V. Stooltzfoos 463 Tate's Executors v. Bell 201 Taunton v. Taylor 721 Tayloe, Ex parte 376 Taylor v. Boyd 618, 624 V. Chambers 61 V. Church 524 V. Commissioners of Ross Co. 207, 212 V. Commonwealth 134 V. Cumberland 254 V. French 67 V. Hall 519 V. Hawkins 659, 562 V. Marcy 692, 693 V. McCracken 63 V. Miles 463 V. NashviUe, &c. K. R. Co, 652 V. Newberne 140 V. Peckham 265 • V. Penn. Co, 151 V. Place 109, 113, 128 V. Plymouth 646 V. Porter 106, 110, 432, 436, 644, 652, 653 V. Sample 441 V. Skrine 762 V. State 400, 743 v. Steams 354 V. St. Louis 251 V. Taylor 81, 747, 778, 779. 783, 785 V. Thompson 279 V. Wilson 183 V. Tpsilanti 22 Tecumseh v. Phillips 178 Tee! v. Yancey 114 Teftw. Teft 129,482 Telegraph Co o. Texas 596 Temple v. Mead 101, 761, 762 Ten Eyok v. D. & R. Canal 266, 662 Tennessee v. Davis 18, 1\1^ V. Sneed 347 V. Whitworth 838 Tennessee, &c. K. R. Co. <>. Adams 671 V. Moore 136 Tenney v. Lenz 243 Tenney's Case 65& Terra Haute v. Hudnut 256 Terre Haute, &c. K. R. Co. v. Bissell 669, 674, 679 V. McKinley 703 Page Terrett v. Taylor 198, 208, 290, 330, 334 Terrill v. Rankin 444 Territory v. Connell 716 V. Daniels 621 V. Guyot 718 V. O'Connor 146, 162, 718, 720 u. Pyle 332 V. Romine 391 V. Scott 138 Terry, Ex parte 389, 390 V. Anderson 450 V. Bright 520 V. Fellows 540, 542, 550, 551, 569 Teutonia Ins. Co. v. O'Connor 246 Texas v. White 3, 8, 11, 28, 46 - Texas & P. Ry. Co. v. Rosedale, &c. Co. 677 Texas & St. L. Ry. Co. v. Cella 702 Texas B. & I. Co. «. State 609 Texas, Mex. Ry. Co. u. Locke 349 Thaoker v. Hawk 486 Thames Bank v. Lovell 730 Thames Manuf . Co. «. Lathrop 98, 470, 611 Tharp v. Fleming 125 Thatcher v. Powell 21 Theobold v. Louisville, &c. Ry. Co. 673, 683 The Slave Grace 862 Thien v. Voegtlander 658 Third Cong. Soo. v. Springfield 632 Thistle V. Frostbury Coal Co. 347 Thomas's Appeal 216 Thomas, Ex parte 597 V. Board of Commissioners 152 V. Collins 183, 455 V. Croswell 542 V. Dakin 238 V. Dunnaway 521 V. Gain 610, 624, 629 V. Hubbell 63 V. Leland 285, 287, 468, 588, 628 V. Owens 79 V. Railroad Co. 35 V. Richmond 234, 269 V. Scott 191, 456 V. Stickle 641 Thomason v. Ruggles 43 Thomasson ». State 716 Thompson, Ex parte 423 u. Alexander 455 u. Caldwell 448 V. Carr . 316 V. Circuit Judge . 783 V. Commonwealth 350, 383, 384 V. Morgan 462, 465 V. Pacific R. R. Co. 690 V. Pittston 262, 281 V. Read 448 V. Reed 448 V. Schermerhorn 249 B. State 384,496,499 V. Steamboat Morton 491 V. Waters 150, 151 V. Whitman 27 Thomson v. Booneville 249 V. Lee Co. 140, 269, 467 xc TABLE OF CASES. Page Thomson V. Grand Golf R. R, Co. 210 Thorington v. Smith 352 Thorn v. Blanchard 531 Thorndyke v. Boston 755 Thome v. Cramer 137 Thornton v. MoGrath 455 V. Territory 146 V. Turner 444-, 450 Thorpe V. Rutland & Burlingttm R. R. Co. 106, 148, 266, 337, 340, 706; 708, 713, 715 Threadgill v. Railroad Co. 752 Thioop V, Langdon 749 Thunder Bay, &e-Co. tf. Speeehly 686, 730 Thurber v. Blackbourne 27 Thursfield ». Jones 307 Thurston v. Little 640 V. St. Joseph 256 V. Thurston 60, 122 Thweatt v. Bank 469 Tide-water Canal Co. v. Arehet 699, 700 Tide Water Co. v. Costar 606, 608 Tiernan v. Rinker 213, 595, 717, 724 Tierney v. Tierney 132 Tiffany v. Stewart 63 V. U. S. lU. Co. 670 Tift V. Griffin 452, 500 Tillinghast v. Carr 161 Tillman v. Arlles 390 V. Coeke 108, 212 V. Shackleton 75 Tillson V. Robbins 542 Tilton V. Swift 457 Timm v. Harrison 174 Tims V. State 220, 390 Tindley v. Salem 267 Tingue v- Port Chester 172 Tinicum Fishing Co. v. Carter 666 Tinkler v. Cox 35 Tinsman v. Belvidere & Del. R.. R. Co. 266, 669 Tioga R. R. Co. v. Blossbuf^, &c. R. R. Co. 60 Tipton V. Locomotive Works 486 v: Tipton 495 Titus V. Boston 687 Titusville Iron Works v. Keystone OU Co. 112, 167 Tod V. Wick 12 Todd V. Birdsall 295 V. Hawkins 524 17. Kankakee, &c. R. R. Co. 702 V. Kerr 495, 496 V. Munson 407 u. Rough 519 V. Troy 309 Toffey V. Atcheson 353 Toledo V. Cone 257 Toledo, &c. R. R. Co. v. Deaeoa 709 V. East Saginaw, &c.' Co. 653 ». Jacksonville 244, 341, 715 Toledo, &e. Ry. Co. v. Detroit 686 V. Munson 702 Toledo Bank v. Bond 337 Tolen V. Tolen 495 Toll V. Wright 447 Page Tomlin V. Dubuque, &c. R. R. Co. 670 Tomlinson v. Branch 337 V. Jessup 337 Tonawanda R. R. Co. . Lee Veazie v. China V. Mayo V. Moore Veazie Bank v. Fenno Veeder v. Lima Venard v. Cross Veneman v. Jones Venice v. Murdoch Verner v. Carson V. Simmons V. Verner Vickers v. Stoneraan Vioksburg v. Tobin Vicksburg & M. R. R. Co. v. Lowty Vioksburg S. & P. R. R. Co. u. Dennis Victory, The Vidal B. Girard's Executors VUas V. Milwaukee, &c. R. R, Co. Vinas V. Merch. &e. Co. Vincennes v. Richards 254, Vincennes University v. Indiana 260, 15, 16, 421, 16, 494, Vincent v. Nantucket Violett V. Violett Virginia, Ex parte V. Rives Vischer v. Vischer Vise w. Hamilton Co. Vogel V. Graaz V. State Voglesong v. State Von Hoffman v. Quincy Voorhees, Matter of Vose V. Morton w. Wabash, &g. Co. v. Beers Wabash, &c. Ry. Co. v. Illinois Waco ». Powell Wade V. La Moille u. Richmond ■o. State V. Walnut Wadleigh v. Gilman Wadsworth's Adm'r v. Smith Wagaman v. Byers Wager v. Troy Union R. R. Co. Wagner v. Bissell V. Railway Co. Wahoo t'. Dickinson Wait V. Ray Waite V. Merrill , Walcott V. People Walcott W. M. Co. V. Upham Waldo V. Portland V. Waldo Waldron v. Haverhill V. Rensselaer, &o. R. R. Co. Wales V. Lyon V. Stetson Pago 614 390 636 107 543 90 714 729 593 271 659 244 270 60 750 542 532 596 136 838 20 580 696 543 667 37 262 475 480 480 495 406 407 749 725 355 25 493 330 737 245 269 228 389 22 245, 739 728 519 673, 677 35 694, 695 119, 138 224 572 596 657 278 495 257 709, 713 61 335, 487 686, Wales V. Wales Walker v. Allen V. Caldwell V. Chapman V. Cincinnati 66, 88, 106, 200, V. Deaver V. Dunham V. Harbor Commissioners V. Oswald V. Peelle V. Sanford V. Sauvinet V. Springfield V. State 176, V. Taylor V. Villavaso ». Whitehead Wall, Ex parte 100, 187, 142, V. State V. Trumbull Wallace, In re V. Menasfa& V. Sharon Trustees V. Shelton Waller v. Loch Walling V. Michigan Wallis V. Bazet Walls, Ex parte Wally's Heirs v. Kennedy Walnut V. Wade 155, Walpole V. Elliott Walschlager v. Liberty Walston V. Commonwealth V. Nevin Walter v. Bacon V. People Walters v. Duke Waltham v. Kemper Walther v. Warner Walton V. Develing V. Greenwood Walton's Lessee v. Bailey Waltz V. Waltz Wamesit Power Co. v. Allen Wammack v. HoUoway Wanser v. Atkinson Wantlan v. White Wanzer v. -Howland Warbiglee v. Los Angeles Ward V. Baniard V. Parwell 347, V. Flood V. Greencastle V. Greenville v: Maryland 24, 489, 692, V. Morris V. New England, &c. Co. V. Peck V. State ». Warner Wardlaw v. Buzzard Ware v. Hylton V. Little V. Miller V. Owens 346 727 170, 181 611 140, 163, 201, 204 441 178, 174 21 748 332 778, 779 16,30 609 178, 410 20 20 351 146, 411 147 600, 502 410 257 228 614, 629 524 695, 597 564 411 430, 483 185, 234 206, 471 275 327 16 456 327 609 801, 803 691, 694 760 138 463 496 649 785 215, 438 453 502 255 444 604, 743 225, 481 248 244 593, 597 597 122 670 383 728 448 9,18 641 348 441 XCIV TABLE OF CASES. ■Warick8hall'8 Case 383 Waring v. Jackson 21 V. Savannah 608 Warner v. Bowdoin Sq. Bap. Ch. 672 V. Curran 480 t>. Grand Haven 629 Faine 642, 646 V. People 331, 332 V. Scott 60 V. Trow 61 Warren w. Board Begistration 755 t>. Charlestown 210, 212 V. Chicago 617 V. Commonwealth 327 V. Glynn 503 17. Henley 625, 627, 630 o. Lyons City 291 V. McCarthy 27 V. Paul 692 V. Shuman 72 V. Sohn 17 V. State 396 V. St. Paul, &c. E. E. Co. 645, 663 Warren Manuf. Co. o. iEtna Ins. Co. 25 Warshung v. Hunt 455 Wartman v. Philadelphia 744 Warwick v. Underwood 61 Washburn i'. Franklin 444, 462 V. Milwaukee &c. E. E. Co. 701 V. Oshkosh 617 Washbume v. Cooke 624, 533 Washington v. Hammond 241 V. Meigs 740 V. Nashville 726 V. Page 84, 97, 180 Washington Avenue 599, 613, 614, 624, 627 Washington Bridge Co. v. State 710, 712 Washington Co. v. Berwick 278 V. Franklin E. R. Co. 173 Washington Ins. Co. v. Price 506, 507, 508, 509 Washington TTniversity v. Eouse 337, 338 Wason i>. Walter 514, 640, 541, 661, 559 Waterbviry v. Newton 717, 724, 741 Waterhouse v. Public Schools 143 Waters v. Leech 241 Watertown v. Mayo 721, 741, 743 Watertown Bank, &c. v. Mix 605 Waterville v. County Commissioners 283, 285 V. Kennebeck Co. 230 Water Works Co. v. Burkhart 182, 644, 661, 663, 679, 688 Watkins, Ex parte 424 V. County Court 301 V, De Armond 413 V. Haight 455 V. Holman's Lessee 122 V. Inge 761 V. Walker Co. 646 Watson V. Avery 672 V. Jones 572, 573 V. Kent 183 0. McCarthy 519 V. Mercer 320, 462, 463, 469 V. New York Cent. B. E. Co. 347, 849 Page Watson V. State 150 B. Thurber 76 Watson's Case 149 Watt V. People 386 Watts V. Greenlee 620 V. State 378 Waxahachie v. Brown 232 Way V. Lewis 60 !). Way 71,73 Wayland v. County Commissioners 698 Wayman v. Southard 108 Wayne Co. v. Waller 406 Wayrick v. People 391 Weare o. Dearing 61 Weaver v. Cherry 263 V. Lapsley 98, 113, 176, 178, 179 V. Mississippi, &c. Co. 670 Webb B. Baird 406, 486 V. Beavan 619 V. Den 451, 452 V Dunn 596 V. State 375 Webber v. Donnelly 719 Weber v. Harbor Commissioners 646 B. Morris, &c. 61 B. Eeinhard 201, 607, 623 Webster v. French 93 V. Harwinton 226, 228, 275 B. Reid 498, 601 V. Eose 364 Webster, Professor, Trial of 398 Wecheriey v. Guyer 779 Weckler b. Chicago 691 Weed B. Black 166 B. Donovan 467 V. Foster 621 V. Gilmanton 229 Weeks v. Milwaukee 228, 470, 605, 615, 617,620, 626, 629, 633, 637, 741, 742 Weet B. Brockport 302, 303 Wehn V. Commissioners 254 Weidenger v. Spruance 348, 438 Weigbtman b. Washington 266, 801, 302 Weil B. Eicord 742 Weill V. Kenfleld 167, 180 Weimer b. Bunbury 202, 434, 639 Weir B. Cram 211 V. Day 224 B. St. Paul, &c. E. E. Co. 644 Weise b. Smith 727, 728 Weismer v. Douglas 268, 699, 601 Weiss V. Guerineau 603 B. Whittemore 520 Weister b. Hade 11, 206, 216, 279, 280, 468, 468, 588 Welborn b. Akin 351 Welch V. Hotchkiss 243, 245, 609 B. Post 178 B. Stowell 246, 742 B. Sykes 27 B. Wadsworth 356, 444, 468, 462 Weldon b. Winslow 469 Welker b. Potter 168 Weller v. Burlington 254 Wellington, Petitioner 197, 210, 216 Wellman, In re 162, 188 TABLE OF CASES. XCV Page Wellman v. Wickerman 652 Wells, Ex parte 176 V. Bain 42, 44 V. Burbank 639 V. McClenning 61 V. People 224 V. Scott 603 V. Somerset, &c. R. E. Co. 646 V. Supervisors 269 V. Taylor 774, 778 V. Weston 471 Welsh V. St. Louis 257, 306 Welton V. Missouri 595, 597 Wendel v. Durbin 92 Wenner v. Thornton 184 Wenzler v. People 175 Werner v. Galveston 139 Wemwag v. Pawling 28 Werth V. Springfield 251 West V. Bancroft 682 V. First Pres. Ch. 673 V. Sansom 350 West Branch, &c. Canal Co. v. MuUi- ner 667 Westbrook, Appeal of '714 ». Deering 166 V. Miller 84 Westerfleld, Ex parte 152 Western & A. B. R. Co. v. Young 248, 716 Western College v. Cleveland 253, 293, 806 Western Fund Savings Society v. Philadelphia 307 Western R. R. Co. v. De GrafE 137 Western Union Telegraph Co. v. Carew 241 V. Massachusetts 692 V. Mayer 688 V. Mayor 723 V. Pendleton 724 V. Philadelphia 609 V. State 212 Westerveit v. Gregg 483, 440. 442 443 V. Lewis 27 Westfall V. Preston 640 West Hartford v. Water Commission- ers 598 Westinghausen v. People 57, 108 West Jersey R. R. Co. p. Cape May, &c. R. R. Co. 674 Weston V. Charleston 29, 691 V. Foster 687 V. Loyhed 505 West Orange v. Field 256 West River Bridge Co. v. Dix 389, 647 West "Virginia Trans. Co. v. Volcanic Oil Co. 649, 651, 656 West Wisconsin R. Co. v. Supervisors of Trempeleau Co. 336, 337 Wetherell ». Stillman 27 Wetmore v. Multhoraah Co. 607 Wetumpka v. Winter 140 Weyl V. Sonoma R. R. Co. 674 Weymann v. Jefferson 251, 256 Wevmouth, &c. Fire Commissioners «. County Com'rs 229, 230, 292 Page Weyrich v. People 374 Whalin v. Macomb 93 Whallon v. Ingham Circ. Judge 204 Wheat V. Ragsdale 788 V. Smith 748, 756, 769, 786, 788 Wheaton v. Beecher 537 V. Peters 31, 36 Wheeler v. Chicago 91 V. Chubbuck 188, 189 V. Cincinnati 254 0. Patterson 776 0. Philadelphia 163 V. Plymouth , 254 D. Rochester, &c. R. R. Co. 688 V. Shields 657 V. Spencer 773 V. State 175 V. Wall 202, 391 Wheeling Bridge Case 728, 731 Wheelock v. Young 646 Wheelock's Election Case 778 Whipley v. McCune 778 Whipple V. Farrar 442 Whitcomb's Case 390 White, Ex parte 26 V. Buchanan 491, 492 V. Carroll 642 V. Charleston 646 V. Clark 653 V. Com'rs of Norfolk Co. 702 V. Crow 503 V. Flynn 463 V. Hart 45, 346 V. Kendrick 434 V. Kent 244, 744 V. The Mayor 241 V. Multnomah Co. 757 V. NashvUle, &c. R. R. Co. 692 V. Nichols 523, 524 V. People 613, 614, 624, 627 V. Phillipston 265 V. Scott 196 D.Stamford .204,263 V. Tallman 248 V. White 129, 469, 662 V. Yazoo City 261, 264 V. Zane 75 Whitebread v. The Queen 403 Whitecar v. Michenor 573 Whited V. Lewis 176 Whitehead v. Latham 347 Whitehouse v. Androscoggin R. R. Co. 703 Whitehurst v. Coleen 497 V. Rogers 61 Whiteley v. Adams 623, 661 V. Miss. &c. Co. 701 White Lick Meeting v. White Lick Meeting 573 Whitemaii's Ex'rs v. Wilmington, &c. R. R. Co. 55, 662 White Mountains R. R. Co. v. White Mountains R. R. Co. of N. H. 466 White River Turnpike Co. v. Central R. R. Co. 647, 662 White School House v. Post 442 XCVl TABLE OF CASES. Page White Star Co. v. Gordon Co. 301 Whitfield V. Longest 245, 726, 742 Whiting V. Barney 407 V. Earle 414 V. Mt. Pleasant 172 Whitley v. State 388 Whitman v. Boston, &c. R. E. Co. 702 Whitmore ». Harden 37 0. State • 399 Whitney v. Allen 632 ~ " " 607 V. Kichardson 477 V. Robertson 18 V. State 374 V. Stow 230 V. Township Board 718, 719 V. Wyman 97 Whitsett V. Union D. & R. Co. 253 Whitson V. Franklin 244, 712 Whittaker v. Johnson Co. 61 Whittemore v. Weiss 570 Whitten v. State 400 Whittier v. Wendell 27 Whittingham v. Bowen 653 Whittmgton v. Polk 60, 192, 201 Whorton v. Morange 492 Whyte V. Nashville 249 Wiek V. The Samuel Strong 22 Wicks V. De Witt 254 Wider v. East St. Louis 286 Wiggins V. Chicago 244 Wiggins Ferry Co. v. East St, Louis 596, 609, 732 Wilbraham v. Ludlow 765 Wilbur V. Springfield 624 Wilby V. Elston 520 Wilcox V. Chicago 257 V. Deer Lodge Co. 287, 604 V. Hemming 245, 726 o. Jackson 21 V. Kassick 27, 501 V. Meriden 702 V. Nolze 25 V. Smith 752 V. St. Paul, &c. Ry. Co. 700 V. Wilcox 494 Wild V. Deig 652 V. Faterson 302 Wilder v. Case 61 V. Chicago & W. M. Ry. Co. 454, 481, 713 V. Maine Cent. R. R. Co. 713 Wildes V. Van Voorhis 440 Wildey v. ColUer 163 Wiley V. BlufEton 228 V. Flournoy 92 v. Parmer 597 Wilkes V. Wood 372 Wilkes's Case 367 Wilkes-Barre v. Meyers 153 Wilkins v. Detroit 614 V. Miller 175 V. Rutland 309 V. State 746 Wilkinson o. Cheatham 472, 473 V. Leland 110, 122, 124, 198, 208 Willamette Iron Bridge Co. v. Hatch 88, 595, 729, 731 Willard v. Harvey 455 V. Killingworth 228, 246 V. Longstreet 352 v. People 211, 213 V. Presbury 615, 624 Willey V. Belfast 309 Williams v. Augusta 740 V. Bank of Michigan 37 V. Bidleman 152 V. Bryant 520 V. Clayton 751 V. Commonwealth 380, 399, 401 V. Conger 22 V. Courtney 442 V. Davidson 232, 233 V. Detroit 98, 202, 613, 624, 628 V. Haines 347 V. Hill 521 V. Johnson 455 V. Kirkland 21 V. Natural Bridge Plank R. Co. 673 c. Newport 332 I. N. Y. Central R. R. Co. 673, 685 V. Norris 20 V. Oliver 20 V. Payson 176, 178, 210 V. People 175 V. Potter 779 V. Roberts 236 «. School District 93, 601, 634, 655 V. Smith 520 V. State 175, 390, 761 V. State Board ' 607 V. Stein 762 Williamson v. Carlton 197 V. Lane 506, 786 V. New Jersey 334 ti. Suydam 120 V. Williamson 122 Williamsport v. Beck 615, 624 Williar v, Baltimore &c. Ass. 444 Willis V. Bay lis 423 V. Owen 67, 137 V. State 392 Williston V. Colkett 466 Willoughby v. George 456 Wills V. State 379 Wihnarth v. Burt 161 Wilmington v. Macks 611 Wilmington R. R. Co. v. Reid 338 Wilmot V. Horton 293 Wilson, Ex parte 374 V. Blackbird Creek Marsh Co. 595, 654, 662, 728, 732 V. Brown 849 V. Chilcott 615 V. Collins 543 V. Cottman 521 V. Crockett 652 V. Fitch 641 V. Franklin 652 V. Hardesty 462 V. Jficksoji 27 r. King 749, 751 TABLE OF CASES. XCVU Page Wilsonu. Johns Island Church 573 V. McKenna 445, 453 V. McNamee 595, 722, 724 V. New York 633, 667 V. Noonan 541, 570 V. Ohio, &c. R. R. Co. 320, 321 V. People 403 V. Rockford, &c. R. R. Co. 702 I). Runyan 520 V. Salamanca 270 V. School District 224 V. Simonton 605 V. State 43, 384, 398, 411, 427 V. Sullivan 643 V. Supervisors of Sutter 632 V. Wheeling 308 Wilson's Case 419 Wilson's Exec, v Deen 60 Wimmer v. Eaton 767 Winhigler v. Los Angeles 809 WincheU v. State 388 Winchester v. Ayres 493, 504 V. Capron 684 Windham v. Portland 280 Wingate v. Sluder 588 Winklemans v. Des Moines 667 Winnsboro v. Smart 244 Winona, &e. R. R. Co. v. Denman 702 V. Waldron 700, 713 Winslow, Ex parte 423 V. Grindall 61 V. State 382 V. Winslow 733 Winsor v. The Queen 400 Winter v. City Council 250 V. Jones 344 V. Thistlewood 785 Winterton v. State 183 Wires v. Farr 448 Wirth V. Wilmington 239 Wisconsin v. Pelican Ins. Co. 28, 1§1 Wisconsin Centr. R. R. Co. u. Com- stock 591 V. Taylor Co. 80, 607, 632 Wisconsin River Imp. Co. v. Lyons 37 Wisconsin Tel. Co. v. Oshkosh 243 Wise V. Bigger 162 Wisners v. Monroe 176, 178 Witham v. Osborn 653 Withers v. State 410 Withington v. Corey 477 Witmer v. Schlatter 60 Witt V. State 388 V. St. Paul, &c. R. R. Co. 693 Wixon V. Newport 257, 302 Woart V. Winniek 320, 821, 448, 455 Wolcott V. Rickey 414 V. Wigton 72, 94 Wolcott Manuf . Co. v. Upham 657 Wolf V. Lansing 243, 720 Wolfe V. Covington, &c. R. R. Co. 674 V. McCaull 165, 184, 185 Wolff V. New Orleans 355 Wong V. Astoria 240, 390 Wood V. Brooklyn 239 V. Fitzgerald 15 Pago Wood w. Fort 188 V. Kennedy 356, 462 V, McCann 164, 166 V. Randall 503 V. Stephen 63 V. Watkinson 27 Wood's Appeal 44 Woodard v. Brien 480 Woodhridge v. Detroit 61-3, 626, 691, 726 Woodburn v. Kilbourn Manuf. Co. 37, 732 Woodbury v. Grimes 347 V. Thompson 520, 521 Woodcock V. Bennett 482 Woodfall's Case 566 Woodfolk V. Nasliville E, R. Co, 702 WoodhuU V. Wagner 357 Woodlawn Cemetery i;. Everett 740 Woodman v. Pitman 728 Woodruff V. Bradstreet Co. 624 V. Fisher 628 V. Neal 671 V. Parham 595, 697 V. Scruggs 444, 462 V. Trapnall 23, 344 Woods V. Miller 371 V. State 716 Woodside v. Wagg 751 Woodson V. Murdock 101, 173 Woodward ?;. Commonwealth 25 V. Lander 533 V. Worcester 309 Woodward Iron Co. v, Cabaniss 100 Woodworth v. Spring 499 V. Tremere 27 Wool, Matter of 411 Woollen V. Banker 12 Woolsey, Matter of 291 V. Commercial Bank 222 Wooten, Ex parte 390 V. State 204 Worcester v. Norwich, &o. R. R. Co. 336 Worcester Co. v. Worcester 598 Worden v. New Bedford 257 Work V. Corrington 26 V. State 890, 492 Worley v. Columbia 257 V. Harris 310 Worsham v. Stevens 847 Worth V. Butler 521 V. WUmington, &c. R. R. Co. 607 Worthen v. Badget 162 V. Prescott 415, 416 Worthley v. Steen 153 Worthy v. Commissioners 20 Wortman, In re 748 Wray, Ex parte 376 V. Pittsburg 614, 624 Wreford u. The People 245, 248, 741 Wren, Ex parte 162 Wright V. Augusta 254 V. Boon 504 V. Boston ' 623, 629 V. Carter 672, 685 V. Chicago 614 v. Cradlebaugb 453 ■ V. De Frees 221, 222 xcvni TABLE OF CASES. Page rage Wright V. Dressel 368 Yeaton v. Bank of Old Dominion 337 V. Dunham 452 V. United States 443, 469 0. Graham 469 Yeazel ». Alexander 740 V. Hawkins 444, 465 Yerger v. Bains 99 V. Le Clair 61 Yick Wo, Matter of 245 V. Lindsay 519 V. Hopkins 16 ,23, 245, 482 V. Lothrop 533, 542 Yonoski v. State 725 t>. Nagle 485 York V. Pease 532 i>. Oakley 448 Yorty V. Paine 751 V. People 875 Yost V. Stout 652 V. State 399, 400 Yost's Report 457 V. Straub 849 Young V. Beardsley 453 V. Woodgate 523 V. Black 60 V. Wright 131 V. Charleston 303 Wroth V. Johnson 778 V. Commissioners, &c. 801 Wurts V. Hoagland 733 V. Harrison 691 Wyandotte v. Drennan 332 V. Joslin 90 Wyatt V. Buell 543 V. McKenzie 653 V. Smith 441 V. Miller 619 Wynehamer v. People 106, 201, 204, 205, V. State Bank 113 433,447,706 718, 719, 721 V. Thomas 608 Wynne, In re 188 V. Wolcott 441 Youngblood a. Sexton 228, 243, 284, 607, 609, 611, 720, 743 Taney v Yancy 201, 448 YarhTOMgh, Ex parte 13,15,424 Yates V Lansing 389 V. Milwaukee 245, 670, 671, 741 V. People 373 V YsitBs 495 Yazoo & M. R. R Co. ». Thomas 338, 632 Yazoo Delta Levee Board v. Daney 694 Yeager v. Tippecanoe 301 Yeaker v. Yeaker 18 Yeatman v. Crandell 614, 629, 733 V. Day 471 z. Zabriskie v. R. R. Co. 140, 272 Zanesville v. Auditor of Muskingum 635 Zeiler v. Chapman Zeisweiss v. James Zimmerman v. Canfield V. Union Canal Co. Zitske V. Goldberg Zottman v. San Francisco ZumhofC V. State Zylstra's Case 758 581 649, 693 666, 730, 732 229 262 718 434 CONSTITUTIONAL LIMITATIONS. CONSTITUTIOML LIMITATIONS. CHAPTER I. DEFINITIONS. A State is a body politic, or society of men, united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined! strength.^ The terms nation and State are frequently employed, not only in the law of nations, but in common parlance, as importing the same thing ; ^ but the term nation is more strictly synonymous with people, and while a single State may embrace different nations or peoples, a single nation will sometimes be so divided politically as to consti- tute several States. In American constitutional law the word State is applied to the several members of the American Union, while the word nation is applied to the whole body of the people embraced within the jurisdiction of the federal government. Sovereignty, as applied to States, imports the supreme, absolute, uncontrollable power by which any State is governed.^ A State is called a sovereign State when this supreme power resides within itself, whether resting in a single individual, or in a number of individuals, or in the whole body of the people.* In the view of international law, all sovereigp States are and must be equal 1 Vattel, b. 1, c. 1, § 1 ; Story on Const. •'• Story on Const. § 207 ; 1 Black. § 207 ; Wheat. Int. Law. pt. 1, c 2, § 2 ; Com. 49 ; Wheat. Int. Law, pt. 1, o. 2, Halleck, Int. Law, 63; Bouv. Law Diet. § 5; Halleck, Int. Law, 63, 64 ; Austin, " State." " A multitude of people united Province of Jurisprudence, Lee. VI. ; together by a communion of interest, and Chipman on Government, 137. " The by common laws, to which they submit right of commanding finally In civil with one accord." Burlamaqui, Politic society." Burlamaqui, Politic Law, Law, c. 6. See Chisholm :;. Georgia, 2 c. 6. Dall. 457 ; Georgia v. Stanton, 6 Wall. 65. * Vattel, b. 1, c. 1, § 2 ; Story on 3 Thompson, J., in Cherokee Nation v. Const. § 207 ; Halleck, Int. Law, 65. In Georgia, 5 Pet. 1, 52; Chase, Ch. J., in other words, when it is an independent Texas v. White, 7 Wall. 700, 720; Vattel, State. Chipman on Government, 137. supra. 4 CONSTITUTIONAL LIMITATIONS. [CH. I. in rights, because from the very definition of sovereign State, it is impossible that there should be, in respect to it, any political superior. The sovereignty of a State commonly extends to all the sub- jects of government within the territorial limits occupied by the associated people who compose it ; and, except upon the high seas, which belong equally to all men, like the air, and no part of which can rightfully be appropriated by any nation,^ the dividing line between sovereignties is usually a territorial line. In Amer- ican constitutional law, however, there is a division of the powers of sovereignty between the national and State, governments by subjects : the former being possessed of supreme, absolute, and uncontrollable power over certain subjects throughout all the States and Territories, while the States have the like complete power, within their respective territorial limits, over other sub- jects.^ In regard to certain other subjects, the States possess powers of regulation which are not sovereign powers, inasmuch as they are liable to be controlled, or for the time being to become altogether dormant, by the exercise of a superior power vested in the general government in respect to the same subjects. A constitution is sometimes defined as the fundamental law of a State, containing the principles upon which the government is founded, regulating the division of the sovereign powers, and directing to what persons each of these powers is to be confided, and the manner in which it is to be exercised.^ Perhaps an equally complete and accurate definition would be, that body of rules and maxims in accordance with which the powers of sover- eignty are habitually exercised. In a much qualified and very imperfect sense every State may be said to possess a constitution ; that is to say, some leading 1 Vattel, b. 1, C.23, § 281 ; Wheat. Int. 506, 516. See Tarbls's Case, 13 Wall. Law, pt. 2, c. 4, § 10. 397. That the general division of powers 2 McLean, J., in License Cases, 5 How. between the federal and State govern- 504, 588. " The powers of the general ments has not been disturbed by the new government and of the State, although amendments to the federal Constitution, both exist and are exercised within the see United States v. Cruikshank, 92 U. S. same territorial limits, are yet separate Rep. 542. and distinct sovereignties, acting sepa- * 1 Bouv. Inst. 9 ; Duer, Const. Juris, rately and independently of each other, 26. "By the constitution of a State I within their respective spheres. And the mean the body of those written or un- 6phere of action appropriated to the written fundamental laws which regulate United States is as far beyond the reach the most important rights of the higher of the judicial process issued by a State magistrates and the most essential privi- judge or a State court, as if the line of leges of the subjects." Mackintosh on division was traced by landmarks and the Study of the Law of Nature and monuments visible to the eye." Taney, Nations. Ch. J., in Ableman v. Booth, 21 How. CH. I.] DEFINITIONS. principle has prevailed in the administration of its government, until it has become an understood part of its system, to which obedience is expected and habitually yielded ; like the hereditary principle in most monarchies, and the custom of choosing the chieftain by the body of the people, which prevails among some barbarous tribes. But the term constitutional government is ap- plied only to those whose fundamental rules or maxims not only locate the sovereign power in individuals or bodies designated or chosen in some prescribed manner, but also define the limits of its exercise so as to protect individual rights, and shield them against the assumption of arbitrary power.i The number of these is not great, and the protection they afford to individual rights is far from being uniform.^ In American constitutional law, the word constitution is used in a restricted sense, as implying the written instrument agreed upon by the people of the Union, or of any one of the States, as the absolute rule of action and decision for all departments and officers of the government, in respect to all the points covered by it, which must control until it shall be changed by the authority which established it, and in opposition to which any act or regu- lation of any such department or officer, or even of the people themselves, will be altogether void. The term unconstitutional law must have different meanings in different States, according as the powers of sovereignty are or are not possessed by the individual or body which exercises the pow- ers of ordinary legislation. Where the law-making department of a State is restricted in its powers by a written fundamental law, as in the American States, we understand by unconstitu- tional law one which, being opposed to the fundamental law, is therefore in excess of legislative authority, and void. Indeed, the term unconstitutional law, as employed in American jurispru- dence, is a misnomer, and implies a contradiction ; that enactment which is opposed to the Constitution being in fact no law at all. But where, by the theory of the government, the exercise of 1 Callioun's Disquisition on Govern- a constitutional government, until the ment, Works, I. p. 11. monarch is deprived of power to' set it 2 Absolute monarchs, under a pressure aside at will. The grant of Magna of necessity, or to win the favor of their Charta did not make the English a con- people, sometimes grant them what is stitutional monarcliy ; it was only after called a constitution ; but this, so long as repeated violations and confirmations of the power of the monarch is recognized that instrument, and when a further dis- as supreme, can be no more than his regard of its provisions had become dan- promise that he will observe its pro- gerous to the Crown, that fundamental visions, and conduct the government rights could be said to have constitu- accordingly. The mere grant of a con- tional guaranties, and the government to stitution does not make the government be constitutional. 6 CONSTITUTIONAL LIMITATIONS. [CH. L complete sovereignty is vested in the same individual or body which enacts the ordinary laws, any enactment, being an exercise of power by the sovereign authority, must be obligatory, and, if it varies from or conflicts with any existing constitutional principle, it must have the effect to modify or abrogate such principle, in- stead of being nullified by it. This must be so in Great Britain with every law not in harmony with pre-existing constitutional principles ; since, by the theory of its government. Parliament ex- ercises sovereign authority, and may even change the constitution at any time, as in many instances it has done, by declaring its will to that effect.^ And when thus the power to control and modify the constitution resides in the ordinary law-making power of the State, the term unconstitutional law can mean no more than this ; a law which, being opposed to the settled maxims upon which the government has habitually been conducted, ought not to be, or to have been, adopted.^ It follows, therefore, that in Great Britain constitutional questions are for the most part to be discussed before the people or the Parliament, since the declared will of the Parliament is the final law ; but in America, after a constitutional question has been passed upon by the legislature, there is generally a right of appeal to the courts when it is attempted to put the will of the legislature in force. For the will of the people, as declared in the Constitution, is the final law ; and the will of the legislature is law only when it is in harmony with, or at least is not opposed to, that controlling instrument which governs the legislative body equally with the private citizen.^ 1 1 Black. Com. 161 ; De Tocqueville, gina, 2 Sup. Ct. R. (Ont.) 70; Leprohnu. Democracy in America, c. 6 ; Broom, Ottawa, 2 App. R. 522. Const. Law, 795; Fischel, English Con- ^ Mr. Austin, in his Province of Juris- stitution, b. 7, c. 6. In the Dominion of prudence, Lee. YI., explains and enlarges Canada, where the powers of sovereignty upon this idea, and gives illustrations to are confided for exercise, in part to the show that in England, and indeed under Dominion Parliament and in part to the most governments, a rule prescribed by Provincial Parliaments, with a superin- the law-making authority may be un- tending authority over all in the imperial constitutional, and yet legal and obliga- government, the term unconstitutional tory. law has a meaning corresponding to its ^ See Chapter VII. post. use in the United States. Severn v. Be- CH. II.3 THE CONSTITUTION OF THE UNITED STATES. CHAPTER II. THE CONSTITUTION OP THE UNITED STATES. The government of the* United States is the existing repre- sentative of the national government which has always in some form existed over the American States. Before the Revolution, the powers of government, which were exercised over all the colonies in common, were so exercised as pertaining either to the Crown of Great Britain or to the Parliament ; but the extent of those powers, and how far vested in the Crown and how far in the Parliament, were questions never definitely settled, and which constituted subjects of dispute between the mother country and the people of the colonies, finally resulting in hostilities.^ That the power over peace and war, the general direction of commer- cial intercourse with other nations, and the general control of such subjects as fall within the province of international law, were vested in the home government, and that the colonies were not, therefore, sovereign States in the full and proper sense of that term, were propositions never seriously disputed in America, and indeed were often formally conceded ; and the disputes re- lated to questions as to what were or were not matters of internal regulation, the control of which the colonists insisted should be left exclusively to themselves. Besides the tie uniting the several colonies through the Crown , of Great Britain, there had always been a strong tendency to a more intimate and voluntary union, whenever circumstances of danger threatened them ; and this tendency led to the New Eng- land Confederacy of 1643, to the temporary Congress of 1690, to the plan of union agreed upon in Convention of 1754, but rejected by the Colonies as well as the Crown, to the Stamp Act Con- gress of 1765, and finally to the Continental Congress of 1774. When the difficulties with Great Britain culminated m actual war, the Congress of 1775 assumed to itself those powers of external control which before had been conceded to the Crown 1 1 Pitkin's Hist. U.S. c. 6; Life and Colonial Congress of 1765; Eamsay's Works of John Adams, Vol. I. pp. 122, Revolution in South Carolina, pp. 6-11; 161; Vol. II. p. 311; Works of Jefferson, 5 Bancroft's U. S. c. 18; 1 Webster's Vol! IX. p. 294; 2 Marshall's Washing- Works, 128; Von Hoist, Const. Hist. o. ton, 0. 2 ; Declaration of Rights by 1 ; Story on Const. § 183 ei seq. 8 CONSTITUTIONAL LIMITATIONS. [oh. IL or to the Parliament, together with such other powers of sov- ereignty as it seemed essential a general government should ex- ercise, and thus became the national government of the United Colonies. By this body, war was conducted, independence de- clared, treaties formed, and admiralty jurisdiction exercised. It is evident, therefore, that the States, though declared to be " sov- ereign and independent," were never strictly so in their individ- ual character, but were always, in respect to the higher powers of sovereignty, subject to the control of a central authority, and were never separately known as members of the family of na- tions.i The Declaration of Independence made them sovereign and independent States, by altogether abolishing the foreign jurisdiction, and substituting a national government of their own creation. But while national powers were assumed by and conceded to the Congress of 1775-76, that body was nevertheless strictly rev- olutionary in its character, and, liiie all revolutionary bodies, its 1 "All the country now possessed by the United States was [prior to the Revo- lution] a part of the dominions appertain- ing to the Crown of Great Britain. Every acre of land in this country was then held, mediately or immediately, by grants from that Crown. All the people of this country were then subjects of the King of Great Britain, and owed allegiance to him ; and all the civil authority then ex- isting or exercised here flowed from the head of the British empire. They were in a strict sense fellow-subjects, and in a variety of respects one people. When tlie Bevolution commenced, the pECtriots did not assert that only the same affinity and social connection subsisted between tlje people of the colonies, which subsisted between the people of Gaul, Britain, and Spain, while Roman provinces, namely, only that affinity and social connection which result from the mere circumstance of being governed by one prince ; differ- ent ideas prevailed, and gave occasion to the Congress of 1774 and 1775. " The Bevolution, or rather the Dec- laration of Independence, found the people already united for general pur- poses, and at the same time providing for, their more domestic concerns by State conventions and other temporary arrangements. From the Crown of Great Britain the sovereignty of their country passed to the people of it ; and it was not then an uncommon opinion that the unappropriated lands which be- longed to the Crown passed, not to the people of the colony or State within whose limits they were situated, but to the whole people. On whatever princi- ples this opinion rested, it did not give way to the other, and thirteen sov- ereignties were considered as emerged from the principles of the Revolution, combined with local convenience and considerations ; the people, nevertheless, continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accord- ingly. Afterwards, in the hurry of the war, and in the warmth of mutual confi- dence, they made a confederation of the States the basis of a general government. Experience disappointed the expectations they had formed from it ; and then the people, in their collective capacity estab- lished the present Constitution." Per Jay, Ch. J., in Chisholm v. Georgia, 2 Dall. 419, 470. See this point forcibly put and elaborated by Mr. A. J. Dallas, in his Life and Writings by 6. M. Dallas, 200-207. Also in Texas i'. White, 7 Wall. 724. Professor Von Hoist, in his Constitutional History of the United States, c. 1, presents the same view clearly and fully. Compare Hurd, Theory of National Existence, 125. CH. II.] THE CONSTITUTION OF THE UNITED STATES. ' 9 authority was undefined, and could be limited only, first, by in- structions to individual delegates by the States choosing them; second, by the will of the Congress ; and third, by the power to enforce that will.^ As in the latter particular it was essentially feeble, the necessity for a clear specification of powers which should be exercised by the national government became speedily apparent, and led to the adoption of the Articles of Confederation, But those articles did not concede the full measure of power es- sential to the efiiciency of a national government at home, the en- forcement of respect abroad, or the preservation of the public faith or public credit; and the difficulties experienced induced the election of delegates to the Constitutional Convention held in 1787, by which a constitution was formed which was put into operation in 1789. As much larger powers were vested by this instrument in the general government than had ever been exer- cised in this country by either the Crown, the Parliament, or the Revolutionary Congress, and larger than those conceded to the Congress under the Articles of Confederation, the assent of the people of the several States was essential to its acceptance, and a provision was inserted in the Constitution that the ratifica- tion of the conventions of nine States should be sufficient for the establishment of the Constitution between the States so ratifying the same. In fact, the Constitution was ratified by conventions of delegates chosen by the people in eleven of the States, before the new government was organized under it ; and the remaining two, North Carolina and Rhode Island, by their refusal to accept, and by the action of the others in proceeding separately, were excluded altogether from that national jurisdiction which before had embraced them. This exclusion was not warranted by any- thing contained in the Articles of Confederation, which purported to be articles of " perpetual union ; " and the action of the eleven States in making radical revision of the Constitution, and exclud- ing their associates for refusal to assent, was really revolutionary. in character,^ and only to be defended, on the same ground of necessity on which all revolutionary action is justified, and which in this case was the absolute need, fully demonstrated by experi- ence, of a more efficient general government.^ 1 See remarks of Iredell, J., in Fenhal- ' " Two questions of a very delicate low V. Doane's Adm'r, 3 Dall. 54, 91, nature present themselves on this occa- and of Blair, J., in the same case, p. 111. sion : 1. On what principle the confedera- The true doctrine on this subject is very tion, which stands in the form of a solemn clearly explained by Chase, J., in Ware compact among the States, can be super- V. Hylton, 3 Dall. 199, 231. seded without the unanimous consent of 2 Mr. Van Buren has said of it that it the parties to it ; 2. What relation is to was " an heroic, though perhaps a law- subsist between the nine or more States, less, act." Political Parties, p. 50. ratifying the Constitution, and the re- 10 CONSTITUTIONAL LIMITATIONS. [CH. IL Left at liberty now to assume complete powers of sovereignty as independent governments, these two States saw fit soon to resume their place in the American family, under a permission contained in the Constitution ; and new States have since been added from time to time, all of them, with a single exception, organized by the consent of the general government, and embra- cing territory previously under its control. The exception was Texas, which had previously been an independent sovereign State, but which, by the conjoint action of its government and that of the United States, was received into the Union on an equal foot- ing with the other States. Without, therefore, discussing, or even designing to allude to any abstract theories as to the precise position and actual power of the several States at the time of forming the present Constitu- tion,^ it may be said of them generally that they have at all times been subject to some common national government, which has exercised control over the subjects of war and peace, and other maining few who do not become parties to it. The first question is answered at once by recurring to the absolute neces- sity of the case ; to the great principle of self-preservation ; to the transcendent law of nature and of nature's God, which de- clares that the safety and happiness of society are the objects at which all politi- cal institutions aim, and to which all such institutions must be sacrificed. Perhaps, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted, among the defects of the confed- eration, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A com- pact between independent sovereigns, founded on acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the sub- ject of treaties, that all of the articles are mutually conditions of each other ; that a breach of any one article is a breach of the whole treaty ; and that a breach commit- ted by either of the parties absolves the others, and authorizes them, if they please, to pronounce the compact vio- lated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the cbmplaining parties find it a difficult task to answer the multiplied and impor- tant infractions with which they may be confronted ? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate. The second question is not less delicate, and the flattering prospect of its being merely hypothetical forbids an over- curious discussion of it. It is one of those cases which must be left to pro- vide for itself. In general it may be ob- served, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled ; the rights of humanity must in all cases be duly and mutually respected ; whilst con- siderations of a common interest, and above all the remembrance of the endear- ing scenes which are past, and the antici- pation of a speedy triumph over the ob- stacles to reunion, will, it is hoped, not urge in vain moderation on one side, and prudence on the other." Federalist, No. 43 (hy Madison). ^ See this subject discussed in Gib- bons V. Ogden, 9 Wheat. 1. CH. II.] THE CONSTITUTION OF THE UNITED STATES. 11 matters pertaining to external sovereignty; and that when the only three States which ever exercised complete sovereignty accepted the Constitution and came into the Union, on an equal footing with all the other States, they thereby accepted the same relative position to the general government, and divested them- selves permanently of those national powers which the others had never exercised. And the assent once given to the Union was irrevocable. " The Constitution in all its provisions looks to an indestructible Union composed of indestructible States." ^ The government of the United States is one of enumerated powers; the national Constitution being the instrument which ^ specifies them, and in which authority should be found for the exercise of any power which the national government assumes to possess.^ In this respect it differs from the constitutions of . the several States, which are not grants of powers to the States, but which apportion and impose restrictions upon the powers which the States inherently possess. The general purpose of the Constitution of the United States is declared by its founders to be, '/'to form a more perfect union, establish justice, insure do- mestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." To accomplish these purposes, the Congress is empowered by the eighth section of article one : — 1. To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general wel- fare of the United States. But all duties, imposts, and excises shall be uniform throughout the United States. 1 Ctase, Ch. J., in Texas v. White, The tenth amendment to the Constitution 7 Wall. 700, 725. ' See United States v. provides that " the powers not delegated Cathcart, 1 Bond, 556. to the United States by the Constitution, 2 " The government of the United nor prohibited by it to the States, are re- States can claim no powers which are served to the States respectively, or to not granted to it by the Constitution ; the people." No power is conferred by and the powers actually granted must the Constitution upon Congress to estab- be such as are expressly given, or given lish mere police regulations within the by necessary implication." Per Marshall, States. United States v. Dewitt, 9 Walk Ch. J., in Martin v. Hunter's Lessee, 1 41. The fourteenth amendment does not Wheat. 304, 326. " This instrument con- take from the States police powers re- tains an enumeration of the powers ex- served to them at the time of the adop- pressly granted by the people to their gov- tion of the Constitution. See Slaughter emment." Marshcdl, Ch. J., in Gibbons House Cases, 16 Wall. 86; Barbier v. V Ogden 9 Wheat. 1, 187. See Calder Connolly, 113 U. S. 27 ; Mugler v. Kan- w'buU 3* Ball. 386; Briscoe v. Bank of sas, 123 U. S. 623. Nor is power con- Kentucky 11 Pet. 257 ; Oilman i-. Phila- ferred to provide for copyrighting trade- delphia 3 Wall. 713; United States u. marks. Trademark Cases, 100 U. 8. 82. 'Cruikshank, 92 U. S. 542, 550, 551, per As to the general division of powers Waiie, Ch. J. ; United States v. Harris, between the Dominion of Canada and the 106 u' S 629 •' Weister v. Hade, 52 Penn. provinces, see Citizens' Ins. Co. v. Par- St. 474 ;'sporrer v. Eifler, 1 Heisk. 633. sons, 4 Can. Sup. Ct. 216. 12 CONSTITUTIONAL LIMITATIONS. [CH. II. 2. To borrow money on the credit of the United States. 3. To regulate commerce with foreign nations and among the several States, and with the Indian tribes.^ 4. To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcy, throughout the United States. 5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures. 6. To provide for the punishment of counterfaiting the securi- ties and current coin of the United States. 7. To establish post-offices and post-roads.^ 8. To promote the progress of science and the useful arts, by securing for limited terms to authors and inventqrs the exclusive right to their respective writings and discoveries.^ 9. To constitute tribunals inferior to the Supreme Court; to define and punish piracies and felonies committed upon the high seas, and offences against the law of nations. 10. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. 11. To raise and support armies ; but no appropriation of money to that use shall be for a longer term than two years. 1 2. To provide and maintain a navy. 13. To make rules for the government and regulation of the land and naval forces. 14. To provide for calling forthjthe militia to execute the laws of the nation, suppress insurrections, and repel invasions. 15. To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving. to the States re- spectively the appointment of the officers, and the authority of ' Commerce on the high seas, though held which require that notes given for between ports of the same State, is held a patent right shall express their pur- to be under the controlling power of Con- pose on the face of the paper. Tod v, gress. Lord v. Steamship Co., 102 U. S. Wick, 36 Ohio St. 370 ; Herdic v. Boess- 541. See cases infra, 595, 717. ler, 109 N. Y. 127 ; Shires «. Com., 120 2 As to the power to exclude matter Pa. St. 368 ; New v. Walker, 108 Ind. from the mail, see Ex parte Jackson, 96 365. The States may pass laws regu- U. S. 727. lating the use of patented articles. Pat- ' This power is exclusive. The States terson.w. Kentucky, 11 Bush, 311; s. c. cannot pass laws regulating the sale of 21 Am. Rep. 220 ; s. c. in error, 97 U. S. patents. HoUida v. Hunt, 70 111. 109 ; 601 ; State v. Telephone Co., 36 Ohio St. 8.0. 22 Am. Rep. 63; Crittenden O.White, 296; s. c. 38 Am. Rep. 583. One who 23 Minn. 24 ; s. c. 23 Am. Rep. 676 ; Cran- peddles articles made under a patent son V. Smith, 37 Mich. 309; s. c. 26 Am. may be required to comply with an or- Rep. 514; .Ei parte Robinson, 2 Biss. 309. dinance requiring licenses for air ped- WboUen ». Banker, 2 Flipp. 33, Swayne, J. dlers. People v. Russell, 49 Mich. 617. In some States, however, statutes are up- OH. II.] THE CONSTITUTION OF THE UNITED STATES. 13 training the militia according to the discipline prescribed by Congress.^ 16. To exercise exclusive legislation in all cases whatsoever, over such district not exceeding ten miles square as may, by ces- sion of particular States, and the acceptance of Congress, become the seat of government of the United States ; and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erec- tion of forts, magazines, arsenals, dockyards, and other needful buildings. 17. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof.^ Congress is also empowered by the thirteenth, fourteenth, and fifteenth amendments to the Constitution to enforce the same by appropriate legislation. The thirteenth amendment abolishes slavery and involuntary servitude, except as a punishment for crime, throughout the United States and all places subject to their jurisdiction. The fourteenth amendment has several ob- jects. 1. It declares all persons born or naturalized in the United States, and subject to the jurisdiction thereof, to be citizens of the United States and of the State wherein they reside ; and it forbids any State to make or enforce any law which shall abridge 1 Houston V. Moore, 5 Wheat. 1 ; Mar- one of the powers belonging to sover- tin V. Mott, 12 Wheat. 19 ; Kneedler v. eignty in other civilized nations, and not Lane, 45 Penn. St. 238 ; Dunne v. People, expressly withheld from Congress by the 94 111. 120 ; s. c. 34 Am. Eep. 213. Constitution ; we are irresistibly impelled ^ Within the legitimate scope of this to the conclusion that the impressing grant Congress can determine for itself upon the treasury notes of the United what is necessary. Ex parte Curtis, 106 States the quality of being a legal ten- TJ. S. 371. " Congress as the legislature der in payment of private debts is an of a sovereign nation, being expressly appropriate means, conducive and plainly empowered by the Constitution ' to lay adapted to the undoubted powers of Con- and collect taxes, to pay the debts and gress, consistent with the letter and spirit provide for the common defence and of the Constitution, and, therefore, within general welfare of the United States,' the meaning of that instrument, ' neces- and ' to borrow money on the credit of sary and proper for carrying into execu- the United States,' and 'to coin money tion the powers vested by this Constitution and regulate the value thereof and of in the government of the United States.'" foreign coin ; ' and being clearly author- Gray, J., in Legal Tender Case, 110 U. S. ized, as incidental to the exercise of those 421. great powers, to emit bills of credit, to Congress has implied power to protect charter national banks, and to provide a voters at federal elections from intimi- national currency for the whole people, dation: Ex parte Yarbrough, 110 U. S. in the form of coin, treasury notes, and 651 ; to protect the right to make home- national bank bills ; and the power to stead entry upon public lands. United make the notes of the government a legal States v. Waddell, 112 U. S. 76. tender in payment of private debts being 14 CONSTITUTIONAL LIMITATIONS. [CH. IL the privileges or immunities of citizens of the United States,^ or to deprive any person of life, liberty, or property, without due process of law, or to deny to any person within its jurisdiction the equal protection of the laws. 2. It provides that when the right to vote at any election for the choice of electors for Presi- dent or Vice-President of the United States, representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or is in any way abridged, except for participation in rebellion or other crime, the basis of congres- sional representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age m such State. 3. It disqualifies from holding Federal or State offices certain persons who shall have engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof. 4. It declares the inviolability of the public debt of the United States, and forbids the United States or any State assum- ing or paying any debt or obligation incurred in aid of insurrec- tion or rebellion against the United States, or any claim for the loss or emancipation of any slave.^ The fifteenth amendment 1 As to this clause see p. 489, note 3, act was questioned in many quarters, infra. and complaints were made that, notwith- 2 " That amendment was undoubtedly standing the abolition of slavery and in- proposed for the purpose of fully pro- voluntary servitude, the freedmen were tecting the newly-made citizens of the in some portions of the country subjected African race in the enjoyment of their to disabilities from which others were ex- freedom, and to prevent discriminating empt. There were also complaints of the State legislation against them. The gen- existence in certain sections of the South- erality of the language used necessarily em States of a feeling of enmity, growing extends its provisions to all persons, of out of the collisions of the war, towards every race and color. Previously to its citizens of the North. Whether these adoption, the Civil Rights Act had been complaints had any just foundation is im- passed, which declared that citizens of material; they were believed by many the United States of every race and to be well founded, and to prevent any color, without regard to any previous possible legislation hostile to any class condition of slavery or involuntary servi- from the causes mentioned, and to obvi- tude, except as a punishment for crime, ate objections to legislation similar to should have the same rights in every that embodied in the Civil Rights Act, State and Territory to make and enforce the fourteenth amendment was adopted, contracts, to sue, be parties, and give This is manifest from the discussions iu evidence, to inherit, purchase, lease, sell. Congress with reference to it. There was own, and convey real and personal prop- no diversity of opinion as to its object erty, and to full and equal benefit of all between those who favored and those who laws and proceedings for the security of opposed its adoption." Mr. Justice Field person and property as is enjoyed by in San Mateo County v. Sou. Pac. E. R. white citizens, and should be subject to Co., 13 Fed. Rep. 722. like punishments, pains, and penalties, "A State acts by its legislative, its and to none other. The validity of this executive, or its judicial authorities. It CH. II.] THE CONSTITUTION OF THE UNITED STATES. 15 declares that the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State, on account of race, color, or previous condition of servitude.^ can act in no other way. The constitu- tional provision, therefore, must mean that no agency oS the State, or of the officers or agents by whom its powers are ezecuti^d, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever by virtue of public posi- tion under a State government deprives another of property, life, or liberty with- out due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition ; and as he acts in the name and for the State, and is clothed with the State's authority, his act is that of the State. This must be 80, or the constitutional prohibition has no meaning." Strong, J., in Ex parte Vir- ginia, 100 U. S. 330. Approved, Neal u. Delaware, 103 U. S. 370, 397. An act of Congress declaring that certain acts committed by individuals shall be deemed offences and punished in the United States courts is invalid. The fourteenth amend- ment does not "invest Congress with power to legislate upon subjects which are within the domain of State legisla- tion; but to provide modes of relief against State legislation or State action of the kinds referred to. It does not authorize Congress to create a code of municipal law for the regulation of pri- vate rights ; but to provide modes of re- dress against the operation of State laws and the action of State officers, executive and judicial, when these are subversive of the fundamental rights specified in the amendment." Bradley, J., in Civil Eights Cases, 109 U. S. 3. See also Uttited States v. Harris, 106 U. S.629; Baldwin «. Franks, 120 U. S. 678. But Congress may punish the intimidation by individuals of voters at federal elections. Ex parte Yarbrongh, 110 U. S. 651. 1 See, as to these amendments, Story on Const. (4th ed.) c. 46, 47, 48, and App. to Vol. II. The adoption of an amend- ment to the federal Constitution has the effect to nullify all provisions of State constitutions and State laws which con- flict therewith. Ex parte Turner, Chase Dec. 157 ; Neal v. Delaware, 103 TJ. S. 870; Wood v. Fitzgerald, 3 Oreg. 568; Portland v. Bangor, 65 Me. 120; B. c. 20 Am. Rep. 681. See Griffin's Case, Chase Dec. 368. The new amendments do not enlarge the privilege of suffrage so as to entitle women to vote. Bradwellv. State, 16 Wall. 130; Minor v. Happersett, 21 Wall. 162. They do not prevent a State forbidding a body to parade without license from the Governor. The privi- lege of citizens of the United States is not thereby infringed. Presser v. Illinois, 116 U. S. 252. The fourteenth amendment does not entitle persons as of right to sell intoxicating drinks against the prohibi- tions of State laws : Barbemeyer v. Iowa, 18 Wall. 129 ; nor is property taken with- out due process of law by such a law, although without Compensation an exist- ing brewery is rendered valueless thereby : Mugler V. Kansas, 123 U. S. 623; it is not violated by the grant by a State, under its police power, of an exclusive right for a term of years to have and maintain slaughter-houses, landings for cattle, and yards for inclosing cattle in- tended for slaughter, within certain speci- fied parishes : Slaughter House Cases, 16 Wall. 36 ; nor by denying the right of ' jury trial in State courts : Walker v. Sauvinet, 92 U. S. 90; it does not pre- clude a State from taxing its citizens for debts owing to them from foreign debtors : Kirtland v. Hotchkiss, 100 U. S. 491; nor from regulating warehouse charges : Munn V. Illinois, 94 U. S. 113 ; or charges for the transportation of freight and passengers by common carriers : Chicago, &c. E. E. Co. V. Iowa, 94 U. S. 155 ; Eail- road Com. Cases, 116 U. S. 307 ; Dow v, Beidleman, 125 U. S. 680; nor from mak- ing railroads, and not other masters, liable to servants for the negligence of fellow-servants: Missouri Pac. Ey. Co. V. Mackey, 127 U. S. 205; Minneapolis & St. L. Ey. Co. V. Herrick, Id. 210 ; nor from giving double damages for killing stock through failure to fence : Missouri Pac. Ey. Co. v. Humes, 115 U. S. 512 ; Minneapolis & St. L. Ey. Co. v. Beck- with, 129 U. S. 26; nor from requiring a railroad to pay for examination of its servants for color-blindness: Nasb- 16 CONSTITUTIONAL LIMITATIONS. [CH. IL The executive power is vested in a president, who is made commander-in-chief of the army and navy, and of the militia of Tille, C, & St. L, Ey. Co. v. Alabama, 128 TJ. S. 96 ; conim, Louisville & N. R. E. Co. V. Baldwin, 5 Sou. E&p. 311 (Ala.). The fourteenth amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great di- versities may and do exist in these re- spects in different States. One may have the common law and trial by jury ; an- other the civil law and trial by the court. But like diversities may also exist in dif- ferent parts of the same State. The States frame their laws and organize their courts with some regard to local peculiarities and special needs, and this violates no constitutional requirement. All that one can demand under the last clause of § 1 of the fourteenth amendment is, that he shall not be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances. Missouri V. Lewis, 101 U. S. 22; Hayes v. Missouri, 120 U. S 68. So railroads, as a class, may be taxed differently from other property, and if the law provides for a hearing and judicial contest, it is due process of law. Kentucky E. E. Tax Cases, 115 U. S. 321. The fourteenth amendment not only gave citizenship to colored persons, but by necessary implication it conferred upon them the right to exemption from unfriendly legislation against them dis- tinctively as colored, — exemption from discriminations Imposed by public author- ity which imply legal inferiority in civil society, lesseil the security of their rights, and are steps towards reducing them to the condition of a subject race. The de- nial by State authority of the right and privilege in colored persons to participate as jurors in the administration of justice is a violation of this amendment. Strau- der V. West Virginia, 100 U S 303 ; Vir- ginia V. Elves, 100 U. S. 813 ; Ex parte Virginia, 100 D. S. 339; Neal v. Dela- ware, 103 U. S. 370. A trial jury may be made up entirely of whites, if negroes are not excluded from jury lists, but an indictment is bad, if found by a grand jury on vrhich whites only are allowed by law. Bush v. Kentucky, 107 U. S. 110. See, further, United States v. Eeese, 92 U. S. 214. A law prohibiting adul- tery between a white and a negro under heavier penalty than between two whites or two blacks, is valid Pace v. Alabama, 106 U. S. 583, See Plunkard v. State, 67 Md. 364. Since these amendments, as before, sovereignty for the protection of life and personal liberty within the respective States rests alone with the States ; and the United States cannot take cognizance of invasions of the privi- lege of suffrage when race, color, or pre- vious condition is not the ground thereof. United States c-. Eeese, 92 U. S. 214; United States v. Cruikshank, id. 542. Police regulations which affect alike all persons similarly situated are valid : Barbier v. Connolly, 113 U. S. 27; so of regulations of the practice of medicine : Dent V. West Virginia, 129 U. S. 114 ; but the administration of such police ordinances so as to deny to Chinese rights accorded to whites in similar circum- stances is prohibited. Yick Wo. v. Hop- kins, 118 U. S. 356. Corporations are " persons " within the meaning of the amendment. Santa Clara Co. v. Southern Pac. R. R. Co., 118 U. S. 394; Missouri Pac Ry. Co. v. Mackey, 127 U. S. 205 ; but a foreign cor- poration is not deprived of equal protec- tion of the laws because it is taxed by the State at as high a rate as are corpo- rations of that State in its home State. Phila. Fire Ass. u. New York, 119 U. S. 110. The repeal of a limitation statute after a personal debt is barred by it, does not deprive the debtor of property without due process of law. Campbell v. Holt, 115 U. S. 620. See, further. Railroad Co. V. Brown, 17 Wall. 446 ; Kennard v. Louisiana, 92 U. S. 480; Pennoyer v. Neffi, 95 U. S. 714; Pearson v. Yewdall, 95 U. S, 294 ; McMillen i>. Anderson, 95 V. S. 37 ; Davidson o. New Orleans, 96 U. S. 97 ; Kirtland v. Hotchkiss, 100 U. S. 491 ; Tennessee v. Davis, 100 U. S. 257 ; Louisiana v. New Orleans, 109 U. S. 285 ; Provident Inst v. Jersey City, 113 U. S. 506; RoBards j'. Lamb,, 127 U. S. 58; Walston V. Nevin, 128 U. S. 578 ; Free- land ». Williams, 131 V. S. 405; Board CH. II.] THE CONSTITUTION OF THE UNITED STATES. 17 the several States when called into the service of the United States ; and who has power, by and with the consent of the Sen- ate, to make treaties, provided two-thirds of the Senate concur, and, with the same advice and consent, to appoint ambassadors and other public ministers and consuls, judges of the Supreme Court, and other officers of the United "States, whose appoint- ments are not otherwise provided for.i The judicial power of the United States extends to all cases in law and equity arising under the national Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting ambassadors, other public ministers and consuls ; to all cases of admiralty and mari- time jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States ; between a State and citizens of another State ; between citizens of different States ; between citizens of the same State claiming lands under grants of different States ; and between a State or citizens thereof and foreign States, citizens or subjects.^ But a State is not subject to be sued in the courts of the United States by citizens of another State, or by citizens or subjects of any foreign State.^ of Com'ra v. Merchant, 103 N. Y. 143 ; State V. Ryan, 70 Wis. 676 ; Warren v. Sohn, 112 Ind. 213; State v. Dent, 25 W. Va. 1 ; Allen v. Wyckoff, 48 N. J, L. 90. 1 U. S. Const, art. 2. 2 U. S. Const, art. 3, § 2. A State can- not make it a condition to the doing of business by a foreign corporation within its limits that tlie corporation shall agree not to remove cases against it to the fed- eral courts. Barron v. Burnside, 121 U. S. 186 J Goodrel v. Kreichbaum, 70 la. 362. See Elston v. Piggott, 94 Ind. 14. Congress may vest exclusive jurisdic- tion in federal courts of suits arising from acts done under color of authority of the United States, and may regulate all incidents of such suits. Mitchell v. Clark, 110 U. S. 633. So, in an action to recover money exacted by a customs collector, the United States limitation law governs. Amson v. Murphy, 109 U. S. 238. 8 U. S. Const. 11th Amendment. But a suit in a State court, to which a State is a party, may be removed to the federal court for trial, if a federal question is in- volved. Railroad Co. v. Mississippi, 102 2 U. S. 185. That States are not suable except with their own consent, see Rail- road Co. V. Tennessee, 101 U. S. 337; Railroad Co. v. Alabama, 101 U. S. 832. A State by appearing in a suit against it may waive its immunity. Clark v. Bar- nard, 108 U. S. 436. It may attach any conditions it pleases to its consent. De- Saussure v. Gaillard, 127 U. S. 216. But apart from such conditions its liability must be determined like that of an in- dividual. Green v. State, 73 Cal. 29; Bowen v. State, 108 N. Y. 166. A suit by one State against another will not lie, if in legal efEect prosecuted in the name of the State by citizens thereof as the real parties in interest. New Hampshire V. Louisiana, 108 U. S. 76. A suit nomi- nally agamst an officer, but really against a State, to enforce performance of its obligation in its political capacity, will not lie. Louisiana v. Jumel, 107 U. S. 711 ; Hagood v. Southern, 117 U. S. 52 ; in re Ayers, 123 U. S. 443. Otherwise if officers, claiming to act as such, invade private right under color of unconstitu- tional laws. United States v. Lee, 106 U. S. 196; Cunningham v. Macon, &c. R. R. Co. 109 U. S. 446; Poindexter v. 18 CONSTITUTIONAL LIMITATIONS. [CH. 11. The Constitution and the laws of the United States, made in pursuance thereof, and all treaties made under the authority of the United States, are declared to be the supreme law of the land;i and the judges of every State are to be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding.^ It is essential to the protection of the national jurisdiction, and to prevent collision between State and national authority, that the final decision upon all questions arising in regard thereto should rest with the courts of the Union ;8 and as such questions must frequently arise first in the State courts, provision is made Greenhow, 114 U. S. 270. See Antoni v. Greenhow, 107 U. S. 769 ; Allen v. Balti- more & O. R. E. Co., 114 U. S. 311. An action lies to compel an officer to do what the statute requires. Kolston v. Missouri Fund Com'rs, 120 U. S. 390. No claim arises against any government in favor of an individual, by reason of the misfea- sance, laches, or unauthorized exercise of power by its officers or agents. Gibbons V. United States, 8 Wall. 269 ; Clodfelter V. State, 86 N. C. 51, 53 ; Langford v. United States, 101 U. S. 341. 1 " The United States is a government with authority extending over the whole territory of the Union, acting upon the States and the people of the States. While it is limited in the number of its powers, so far as its sovereignty extends it is supreme. No State government can exclude it from the exercise of any au- thority conferred upon it by the Consti- tution, obstruct its authorized officers against its will, or withhold from it for a moment the cognizance of any subject which that instrument has committed to it." Strong, J., in Tennessee v. Davis, 100 U. S. 257, 263. 2 U. S. Const, art. 6j wings v. Nor- wood's Lessee, 5 Cranch, 344 ; McCulloch V. Maryland, 4 Wheat. 316; Foster v. Neilson, 2 Pet 253, 314 ; Cook v. Moffat, 5 How. 295; Dodge u. Woolsey, 18 How. 331. A State constitution can- not prohibit federal judges from charg- ing juries^ as to matters of fact. St. Louis, &o. Ey. Co. v. Vickers, 122 U. S. 360. Congress may empower a cor- poration, to take soil under navigable water between two States for the build- ing of a bridge for use in inter-state commerce, although the legislature of one of- the States protests against it. Decker v. Baltimore &c. R. E. Co., 30 Fed. Eep. 728. When a treaty has been ratified by the proper formalities, it is, by the Constitution, the supreme law of the land, and the courts have no power to in- quire into the authority of the persons by whom it was entered into on behalf of the foreign nation: Doe v. Braden, 16 How. 635, 657 ; or the powers or rights recognized by it in the nation with which it was made. Maiden v. IngersoU, 6 Mich. 373. Its force is such that it may even take away private property without com- pensation. Cornet v. Winton, 2 Yerg. 143. It may operate retroactively. Ha- uenstein v. Lynham, 100 U. S. 483. A State law in conflict with it must give way to its superior authority. Ware v. Hylton, 3 Dall. 99 ; Yeaker v. Yeaker, 4 Met, (Ky.) 33; People v. Gerke, 5 Cal. 381. So, a provision in a State constitu- tion. Parrott's Chinese Case, 6 Sawy. 349. See, further, United States v. Aredondo, 6 Pet. 691 ; United States v. Percheman, 7 Pet. 51; Garcia v. Lee, 12 Pet. 511; Hauenstein e. Lynham, 100 U. S. 483; Eopes c;. Clinch, 8 Blatch. 304 : United States V. Tobacco Factory, 1 Dill. 264; The Cherokee Tobacco, 11 Wall. 616. In this last case it is decided, as before it had been at the Circuit, that a law of Con- gress repugnant to a treaty, to that ex- tent abrogates it. To the same effect are Head Money Cases, 112 U. S. 580; Whit- ney B. Robertson, 124 U. S. 190 ; Chinese Exclusion Case, 130 U. S. 581. , ' Martin v. Hunter's Lessee, 1 Wheat. 304, 334; Cohens v. Virginia, 6 Wheat. 264 ; Bank of United States v. Norton, 8 Marsh. 423 ; Braynard v. Marshall, 8 Pick. 194, per Parker, Ch. J. ; Spangler's Case, 11 Mich. 298; Tarble's Case, 13 Wall. 397 ; Tennessee v. Davis, 100 U. S. 257. CH. II.] THE CONSTITUTION OF THE UNITED STATES. 1& by the Judiciary Act for removing to the Supreme Court of the United States the final judgment or decree in any suit, rendered in the highest court of law or equity of a State in which a de- cision could be had, in which is drawn in question the validity of a treaty, or statute of, or authority exercised under the United States, and the decision is against its validity ; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of its being repug- nant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity ; or where any title, right, privilege, or immunity is claimed under the Constitution or any treaty or statute of or commission held or authority exer- cised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission, or authority.^ But to authorize the removal under that act, it must appear by the record, either expressly or by clear and necessary intendment, that some one of the enumerated questions did arise in the State court, and was there passed upon. It is not sufficient that it 1 Acts 1789 and 1867 ; E. S. 1878, title 13, ch. 11. " It ia settled law, as established by well-considered decisions of this court, pronounced upon full argument, and after mature deliberatien, notably in Cohens v. Virginia, 6 "Wheat. 264 ; Os- bom V. Bank of United States, 9 Wheat. 738; Mayor v. Cooper, 6 Wall. 247 ; Gold Water & Washing Co. v. Keyes, 96 U. S. 199 ; and Tennessee v. Davis, 100 U. S. 257; " That while the eleventh amendment of the national Constitution excludes the judicial power of the United States from suits, in law or equity, commenced Qf prosecuted against one of the United States by citizens of another State, such power is extended by the Constitution to suits commenced or prosecutea by a State against an individual, in which the latter demands nothing from the former, but only seeks the protection of the Consti- tution and laws of the United States against the claim or demand of the State ; " That a case in law or equity consists 6f the right of one party, as well as of the other, and may properly be said to arise under the Constitution, or a law of the United States, whenever its correct decision depends upon a construction of either ; " That cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right, or privilege, or claim, or protection, or defence of the party, in whole or in part, by whom they are asserted ; " That except in the cases of which this court is given by the Constitution original jurisdiction, the judicial power of the United States is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct ; and lastly, — "That it is not sufficient to exclude the judicial power of the United States from a particular case that it involves questions which do not at all depend on the Constitution or laws of the United States ; but when a question to which the judicial power of the Union is extended by the Constitution forms an ingredient of the original cause, it is within the power of Congress to give the circuit courts jurisdiction of that cause, although other questions of fact or law may be in- volved in it.'* Harlan, J., in Bailroad Co. V. Mississippi, 102 U. S. 135, 140. 20 CONSTITUTIONAL LIMITATIONS. [cH. n. might have arisen or been applicable.^ And if the decision of the State court is in favor of the right, title, privilege, or exemp- tion so claimed, the Judiciary Act does not authorize such re- moval.2 Neither does it where the validity of the State law is drawn in question, and the decision of the State court is against its validity .3 But the same reasons which require that the final decision upon all questions of national jurisdiction should be left to the national I Owingg V. Norwood's Lessee, 5 Cranch, 344 ; Martin v. Hunter's Les- see, 1 Wheat. 304; Inglee i>. Coolidge, 2 Wheat. 363; MiUer v. NichoUs, 4 Wheat. 811; Williams ». Norris, 12 Wheat. 117; Hickie v. Starke, 1 Pet. 94 ; Harris o. Dennie, 3 Pet. 292 ; Fish- er's Lessee v. Cockerell, 5 Pet. 248 ; New Orleans v. De Armas, 9 Pet. 223, 234 ; Keene v. Clarke, 10 Pet. 291 ; Crowell «. Eandell, 10 Pet. 368; McKinny v. Car- roll, 12 Pet. 66 ; Holmes ». Jennison, 14 Pet. 640 ; Scott v. Jones, 5 How. 343 ; Smith V. Hunter, 7 How. 738 ; Williams V. Oliver, 12 How. Ill ; Calcote ». Stan- ton, 18 How. 243 ; Maxwell v. Newbold, 18 How. 511 ; Hoyt v. Shelden, 1 Black, 518 ; Farney v. Towle, 1 Black, 350 ; Day V. Gallup, 2 Wall. 97 ; Walker v.- Villa- vaso, 6 Wan. 124 ; The Victory, 6 Wall. 382 ; Hamilton Co. v. Mass., 6 Wall. 632; Gibson o. Chouteau, 8 Wall. 314 ; Worthy o. Commissioners, 9 Wall. 611 ; Messen- ger V. Mason, 10 Wall. 607 ; Insurance Co. V. Treasurer, 11 Wall. 204 ; McManus V. .©'Sullivan, 91 U. S. 578 ; Boiling v. Lersner, 91 U. S. 594 ; Adams Co. v. Bur- lington, &c. R. R. Co., 112 U. S. 123; Chicago Life Ins. Co. v. Needles, 113 U. S. 574; Detroit Ry. Co. v. Guthard, 114 U. S. 133; Arrowsmith o. Harmon- ing, 118 U. 8. 194; Germania Ins. Co. v. Wisconsin, 119 U. S. 473 ; Lehigh Water Co. V. Easton, 121 U. S. 388; New Or- leans Water Works v. Louisiana Sugar Co., 125 U. S. 18. It is not sufficient that the presiding judge of the State court certifies that a right claimed under the national authority was brought in ques- tion. Railroad Co. u. Rock, 4 Wall. 177 ; Parmelee v. Lawrence, 11 Wall. 36; Felix V. Schwarnweber, 125 U. S. 54. If the record does not show a federal question raised or necessarily involved, the opin- ion of the court will not be examined to gee if one was in fact decided. Otis v. Oregon S. S. Co., 116 U. S. 548. But where an opinion is part of the record by law, it may be examined. New Or- leans Water Works v. Louisiana Sugar Co., 126 U. S. 18; Kreiger v. Shelby R. E. Co., 125 U. S. 39 ; Gross v. U. S. Mortgage Co., 108 U. S. 477 ; and see Phila. Fire Ass. V. New York, 119 U. S. 110. The record should show that the right Tvas claimed in the trial court. Brooks v. Missouri, 124 U. S. 394. It is a federal question whether a State court has given effect to the unreversed decision of a United States Circuit Court acting within its jurisdiction. Crescent City, &u. Co. V. Butcher's Union, &c. Co., 120 U. S. 141. So, whether a prisoner has been twice in jeopardy ; Bohanan v. Nebraska, 118 U. S. 231; and whether one in a country wittl which we have an extra- dition treaty can be brought back for trial except under the treaty provisions. Ker V. Illinois, 119 U. S. 436. That a State court has held valid a divorce iu a foreign country raises no such ques- tion. Roth V. Ehman, 107 U. S. 319. a Gordon v. Caldcleugh, 3 Cranch, 268 ; McDonogh v. Millaudon, 3 How. 693; Fulton i>. McAffee, 16 Pet. 149 ; Linton v. Stanton, 12 How. 423 ; Burke v. Gaines, 19 How. 388; Reddall v. Bryan, 24 How. 420 ; Roosevelt v. Meyer, 1 Wall. 612 ; Ryan v. Thomas, 4 Wall. 603. * Commonwealth Bank v. Griffith, 14 Pet. 66 ; Walker v. Taylor, 5 How, 64. We take no notice here of the statutes for the removal of causes from the State to the federal courts for the purposes of origi- nal trial, as they are not important to any discussion we shall have occasion to en- ter upon in this work. See Rev. Stat, of U. S. 1878, title 13, eh. 7 ; Cooley, Consti- tutional Principles, 122-128. Judge Dil- lon has published a convenient manual on this subject. CH. il] the constitution of the united states. 21 courts will also hold the national courts bound to respect the decisions of the State courts upon all questions arising under the State constitutions and laws, where nothing is involved of national authority, or of right under the Constitution, laws, or treaties of the United States ; and to accept the State decisions as correct, and to follow them whenever the same questions arise in the national courts.^ With the power to revise the decisions of the 1 In Beauregard v. New Orleans, 18 How. 497, 602, Mr. Justice Campbell says : " The oonstitation of this court requires it to follow the laws of the several States as rules of decision wherever they apply. And the habit of the court has been to defer to the decisions of their judicial tri- bunals upon questions arising out of the common law of the State, especially when applied to the title of lands." In Bank of Hamilton v. Dudley's Lessee, 2 Pet. 492, 524, it was urged that the exclusive power of State courts to construe legislative acts did not extend to the paramount law, so as to enable them to give efficacy to an act which was contrary to the State con- stitution ; but Marshall, Ch. J., said : " We cannot admit this distinction. The judi- cial department of every government is the rightful expositor of its laws, and emphatically of its supreme law." Agfiin, in Elmendorf v. Taylor, 10 Wheat. 1.52, 159, the same eminent judge says : " The judicial department of every government, where such department exists, is the ap- propriate organ for construing the legis- lative acts of that government. Thus no court in the universe which proposed to be governed by principle would, we pre- sume, undertake to say that the courts of Great Britain or France, or of any other nation, had misunderstood their own stat- utes, and therefore erect itself into a tri- bunal which should correct such misun- derstanding. We receive the construction given by the courts of the nation as the true sense of the law, and feel ourselves no more at liberty to depart from that construction than to depart from the words of the statute. On this princi- ple, the construction given by this court to the Constitution and laws of the United States is received by all as the true con- struction ; and on the same principle the construction given by the courts of the several States to the legislative acts of those States is received as true, unless they come in conflict with the Consti- tution,' laws, or treaties of the United States." In Green v. Neal's Lessee, 6 Pet. 291,'298, it is said by McLean, J. : " The decision of the highest judicial tribunal of a State should be considered as final by this court, not because the State tri- bunal in such a case has any power to^ bind this court, but because, in the lan- guage of the court in Shelby v. Guy, 11 Wheat. 361, a fixed and received con- struction by a State in its own courts makes a part of the statute law." And see Jackson v. Chew, 12 Wheat. 153, 162, per Thompson, J. ; also the follow- ing cases : Sims v. Irvine, 3 Dall. 425 ; McEeen v. Delancy, 5 Cranch, 22 ; Polk's Lessee v. Wendal, 9 Cranch, 87 ; Preston V. Browder, 1 Wheat. 115; Mutual As- surance Co. V. Watts, 1 Wheat. 279; Shipp V. Miller, 2 Wheat. 316; Thatcher V. Powell, 6 Wheat. 119; Bell a. Morri- son, 1 Pet. 351; Waring v. Jackson, 1 Pet. 570; De Wolf v. Babaud, 1 Pet. 476; FuUerton v. Bank of United States, 1 Pet. 604; Gardner w. Collins, 2 Pet. 58 ; Beach r.Viles, 2 Pet. 675 ; Inglis v. Sailor's Snug Harbor, 3 Pet. 99 ; United States v. Mor- rison,- 4 Pet. 124 ; Henderson v. Griffin, 5 Pet. 151 ; Hinde v. Vattier, 5 Pet. 898; Boss 0. McLung, 6 Pet. 283; Marlatt v. Silk, 11 Pet. 1; Bank of United States o. Daniel, 12 Pet. 32 ; Clarke i;. Smith. 13 Pet 195 ; Boss v. Duval, 13 Pet. 45; Wil- cox V. Jackson, 13 Pet. 498 ; Harpending V. Beformed Church, 16 Pet 455 ; Martin V. Waddell, 16 Pet. 367 ; Amis v. Smith, 16 Pet. 303 ; Porterfleld v. Clark, 2 How. 76; Lane v. Vick, 3 How. 464; Foxcroft V. Mallett, 4 How. 353 ; Barry v. Mercein, 5 How. 103 ; Bowan e. Bunnells, 5 How. 134 ; Van Bensselaer v. Kearneyy 11 How. 297 ; Pease v. Peck, 18 How. 595 ; Fisher V. Haldeman, 20 How. 186; Parker v. Kane, 22 How. 1 ; Suydam v. Williamson, 24 How. 427 ; Sumner v. Hicks, 2 Black, 532 ; Chicago ». Bobbins, 2 Black, 418 ; Miles V. Caldwell, 2 Wall. 35; Williams V. Kirkland, 13 Wall. 306 ; Walker v. 22 CONSTITUTIONAL LIMITATIONS. [CH. II. State courts in the cases already pointed out, the due observance of this rule will prevent those collisions of judicial authority Harbor Com'rs, 17 Wall. 648; Supervi- sors V. United States, 18 Wall. 71 ; Fair- field V. Gallatin, 100 U. S. 47 ; Wade v. Walnut, 105 U. S. I ; Post v. Supervi- sors, id. 667 ; Taylor v. Ypsilanti, id. 60 ; Equator Co. u. Hall, 106 U. S. 86 ; Ben- dey V. Townsend, 109 U. S. 665; Norton V. Shelby Co., 118 U. S. 425 ; Stl-yker v. Goodnow, 123 U. S. 527; Williams v. Conger, 125 U. S. 397 ; Bucher v. Cheshire B. B. Co., id. 555 ; German Sav. Bank. v. Franklin Co., 128 U. S. 526 ; Springer v. Foster, 2 Story C. C. 383 ; Neal v. Green, 1 McLean, 18 ; Paine v. Wright, 6 McLean, 395 ; Boyle v. Arledge, Hemp. 620 ; Grif- fing 0. Gibb, McAll. 212; Bayerque v. Cohen, McAll. 113 ; Wick v. The Samuel Strong, Newb. 187 ; N. F. Screvf Co. v. Bliven, 3 Blatoh. 240 ; Bronson K.Wallace, 4 Blatch. 465 ; Van Bokelen v. Brooklyn City, B. B. Co., 5 Blatch. 379 ; United States V. Mann, 1 Gall. 3 ; Society, &c. v. Wheeler, 2 Gall. 105; Coates o. Muse, Brock. 529 ; Meade v. Beale, Taney, 389 ; Loring v. Harsh, 2 ClifE. 311 ; Parker v. Phetteplace, 2 Cliff. 70 ; King v. Wilson, 1 Dill. 555. The decision of the State court, that a State statute has been en- acted in accordance with the State con- stitution, is binding on the federal courts. Eaih-oad Co. v. Georgia, 98 U. S. 359. In Green v. Neal's Lessee, 6 Pet. 291, an im- portant question was presented as to the proper corfrse to be pursued by the Su- preme Court of the United States, under somewhat embarrassing circumstances. That court had been called upon to put a construction upon a State statute of limi- tations, and had done so. Afterwards the same question had been before the Supreme Court of the State, and in re- peated cases had been decided otherwise. The question now was whether the Su- preme Court would follow its own deci- sion, or reverse that, in order to put itself in harmony with the State decisions. The subject is considered at length by McLean, J., who justly concludes that " adherence by the federal to the exposi- tion of the local law, as given by the courts of the State, will greatly tend to preserve harmony in the exercise of the judicial power in the State and federal tribunals. This rule is not only recom- mended by strong considerations of pro- priety, growing out of our system of jurisprudence, but it is sustained by prin- ciple and authority." The court, accord- ingly, reversed its rulings to make them conform to those of the State court. See also Suydamw. Williamson, 24 How. 427 ; LefSngwell u. Warren, 2 Black, 599; Bloss- burg, &c. B. E. Co. v. Tioga B. B. Co., 5 Blatch. 387 ; Smith v. Shriver, 3 Wall. Jr. 219. It is, of course, immaterial that the court may still be of opinion that the State court has erred, or that the deci- sions elsewhere are different. Bell v. Mor- rison, 1 Pet. 351. But where the Supreme Court had held that certain contracts for the price of slaves were not made void by the State constitution, and afterwards the State court held otherwise, the Supreme Court, regarding this decision wrong, de- cUned to reverse their own ruling. Kowan V. Bunnels, 6 How. 134. Compare this with Nesmith v. Sheldon, 7 How. 812, in which the court foUowjed, without exam- ination or question, the State decision that a State general banking law was in violation of the constitution of the State. The United States Circuit Court had held otherwise previous to the State decision. Falconer v. Campbell, 2 McLean, 195. Under like circumstances the State Su- preme Court's ruling on a statute of limitations was followed, overruling the federal circuit decision which followed that of a lower State court. Moores v. Nat. Bank, 104 U. S. 625. But the State court's construction of its constitution after the controversy arose, and in a suit between different parties as to the same subject-matter, is not binding on the fed- eral court. Carroll Co. v. Smith, 111 U. S. 556 ; Enfield v. Jordan, 119 U. S. 680. So, where after a ruling in the United States Circuit Court the State Supreme court for the first time decides against such ruling, its decision will not be followed of necessity in the federal Supreme Court. Burgess v. Seligman, 107 U. S. 20. See Gibson v. Lyon, 115 U. S. 439. This doctrine does not apply to ques- tions not at all dependent upon local statutes or usages; as, for instance, to contracts and other instruments of a com- CH. II.] THE CONSTITUTION OF THE UNITED STATES. 23 which would otherwise be inevitable, and which, besides being unseemly, would be dangerous to the peace, harmony, and sta- bility of the Union. Besides conferring specified powers upon the national govern- ment, the Constitution contains also certain restrictions upon the action of the States, a portion of them designed to prevent en- croachments upon the national authority, and another portion to protect individual rights against possible abuse of State power. Of the first class are the following : No State shall enter into any treaty, alliance, or confederation, grant letters of marque or re- prisal, coin money, emit bills of credit,^ or make anything but gold and silver coin a tender in payment of debts. No State shall, without the consent of Congress, lay any imposts or duties upon imports or exports, except what may be absolutely neces- sary for executing its inspection laws ; and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of Congress. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into mercial and general nature, like bills of exchange: Swift v. Tyson, 16 Pet. 1; Gates V. National Bank, 100 U. S. 239 ; Railroad Co. v. National Bank, 102 U. S. 14; and insurance contracts. Robinson V. Commonwealtii Ins. Co., 3 Sum. 220. And see Reimsdyke v. Kane, 1 Gall. 376; Austen v. Miller, 5 McLean, 153; Gloucester Ins. Co. v. Younger, 2 Cart. C. C. 822 ; Bragg v. Meyer, MoAU. 408. ■ Whether a lunatic's contract is void or Toidable is a question of general juris- prudence. Edwards v. Davenport, 20 Fed. Rep. 756. And of course cases presenting questions of conflict with 4he Constitution of the United States cannot be within the doctrine. State Bank v. Knoop, 16 How. 369; Jefferson Branch Bank v. Skelley, 1 Black, 436. The fed- eral court must decide for itself whether there exists a contract within the consti- tutional protection. Louisville & N. R. R. Co. V. Palmes, 109 U. S. 244; Louis- ville Gas Co. V. Citizens' Gas Co., 115 U. S. 683. So in determining the valid- ity of municipal ordinances. Yick Wo V. Hopkins, 118 TJ. S. 356. And where a contract had been made under a set- tled construction of the State constitu- tion by its highest court, the Supreme Court sustained it, notwithstanding the State court had since overruled its for- mer decision. Gelpcke v. Dubuque, ,1 Wall. 175. See Olcott v. Supervisors, 16 Wall. 678; Douglass v. Pike County, 101 U. S. 677. 1 To constitute a bill of credit witliin the meaning of the Constitution, it must be issued by a State, involve the faith of the State, and be designed to circulate as money on the credit ofi the State, in the ordinary uses of business. Briscoe v. Bank of Kentucky, 11 Pet. 257 ; Wood- ruff V. Trapnall, 10 How. 190. Treasury warrants designed so to circulate are bills of credit. Braggs v. TufEts, 49 Ark. 554. The facts that a State owns the entire capital stock of a bank, elects the directors, makes its bills receivable for the public dues, and pledges its faith for their redemption, do not make the bills of such bank " bills of credit " in the constitutional sense. Darrington v. State Bank of Alabama, 18 How. 12. See fur^ ther, Craig v. Missouri, 4 Pet. 410 ; Byrne V. Missouri, 8 Pet. 40 ; Curran v. Arkan- sas, 15 How. 304; Moreau v Detcha- mendy, 41 Mo. 431 ; Bailey v. Milner, 35 Ga. 330; City National Bank v. Mahan, 21 La. Ann. 751. 24 CONSTITUTIONAL LIMITATIONS. [CH. n. any agreement or compact with another State or with a foreign power, or engage in war, unless actually invaded, or in such im- minent danger as will not admit of delay. Of the second class are the following: No State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts,^ or make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or property without due pro- cess of law, nor deny to any person within its jurisdiction the equal protection of the laws,^ nor base discriminations in suffrage on race, color, or previous condition of servitude.^ Other provisions have for their object to prevent discriminations by the several States against the citizens and public authority and proceedings of other States. Of this class are the provisions that the citizens of each State shall be entitled to all the privileges and iflamunities of citizens in the several States ; * that f ugi- l^r 1 Const, of U. S. art. 1, § 10; Story on Const, c. 33, 34. 2 Const, of U. S. 14th Amendment ; Story on Const. (4th ed.) c. 47. " Const, of U. S. 15th Amendment ; Story on Const. (4th ed.) c. 48. * Const, of U. S. art. 4. " What are the privileges and immunities of citizens in the several States t We feel no hesi- tation in confining these expressions to those privileges and immunities which are in their nature Jundamental ; which belong of right to the citizens of all free governments, and which liave at all times been enjoyed by the citizens of the sev- eral States which compose this Union, from the time of their becoming free, in- dependent, and sovereign. What those fundamental principles are, it would per- haps be more tedious than difficult to enumerate. They may, however, be all comprehended under tlie following gene- ral heads : Protection by the government, the enjoyment of life and liberty, witli the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through or to reside in any other State, for purposes of trade, agri- culture, professional pursuits, or other- wise ; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of every kind in the courts of the State ; to take, hold, and dispose of prop- erty, either real or personal ; and an ex- emption from higher taxes or impositions than are paid by the citizens of the other State, — may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental ; to which may be added the elective franchise as regu- lated and established by the laws or con- stitution of the State in which it is to ^e exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities; and the enjoyment of them by the citizens of each State in every other State was manifestly calculated (to use the expres- sions of the preamble of the corresponding provision in the old Articles of Confed- eration) 'tlie better to secure and per- petuate mutual friendship and intercourse among the people of the different States of the Union.' " Washington, J., in Corfield v. Coryell, 4 Wash. C. C. 380. The Supreme Court will not describe and define those privileges and immunities in a general classification ; preferring to decide each case as it may come up. Conner v. Elliott, 18 How. 591 ; Ward v. Maryland, 12 Wall. 418 ; McCready v. Virginia, 94 U. S. 391. The question in this last case was whether the State of Virginia could prohibit citi- zens of other States from planting oysters in Ware River, a stream in that State where the tide ebbs and flows, and the CH. II.] THE CONSTITUTION OF THE UNITED STATES. 25 tives from justice shall be delivered up,i and that full faith and right be granted by the State to its gown citizens exclusively. Waite, Ch. J., in answering the question in the aflBrmative, said : " The right thus granted is not a privilege or immunity of general, but of special citizenship. It does not belong of right to the citizens of all free govern- ments, but only to the citizens of Virginia, on account of the peculiar circumstances in which they are placed ; they, and they alone, owned the property to be sold or 1ised; and they alone had the power to dispose of it as they saw fit. They owned it, not by virtue of citizenship merely, but of citizensliip and domicile united ; that is to say, by virtue of a citizenship confined to that particular locality." See also Paul V. Hazelton, 37 N. J. 106. For other discussions upon this subject, see Murray v. McCarty, 2 Munf. 893 ; Lem- mon V. People, 26 Barb. 270, and 20 N. Y. 562 ; Campbell v. Morris, 3 Har. & M'H. 564 ; Amy v. Smith, 1 Lit. 326 ; Crandall V. State, 10 Conn. 840 ; Butler v. Farns- worth, 4 Wash. C. C. 101 ; Commonwealth V. Towles, 5 Leigh, 743 ; Haney v. Mar- shall, 9 Md. 194 ; Slaughter v. Common- wealth, 13 Gratt. 767 ; State v. Medbury, 3 B. I. 138 ; People v. Imlay, 20 Barb. 68 ; People I). Coleman, 4 Cal. 46; People v. Thurber, 13 III. 544 ; Phoenix Insurance Co. V. Commonwealth, 5 Bush, 68 ; Ducat V. Chicago, 48 111. 172 ; Fire Department V. Noble, 3 E. D. Smith, 441 ; Same v. Wright, 8 E. D. Smith, 453 ; Robinson v. Oceanic S. N. Co., 112 N. Y. 315; Bliss's Petition, 63 N. H. 135 ; State v. Lancas- ter, Id. 267 ; People v. Phippin, 37 N. W. Rep. 888 (Mich.) ; State v. Oilman, 10 S. E. Rep. 283 (W. Va.) ; Fire Dep't u. Helfenstein, 16 Wis. 136 ; Sears v. Com- missioners of Warren Co., 36 Ind. 267; JefEersonville, &c. R. R. Co. v. Hendricks, 41 Ind. 48 ; Cincinnati Health Associa- tion V. Rosenthal, 55 111. 85 ; State u. Fos- dick, 21 La. Ann. 434 ; Slaughter House Cases, 16 Wall. 36; Brad well v. State, 16 Wall. 130 ; Bartemeyer v. Iowa, 18 Wall. 129; United States v. Cruikshank, 92 U. S. 542 ; Kimmish v. Ball, 129 U. S. 217. The constitutional provision does not apply to corporations. Warren Manuf. Co. V. ^tna Ins. Co., 2 Paine, 501 ; Paul r. Virginia, 8 Wall. 168; Pembina Min- ing Co. V. Pennsylvania, 125 U. S. 181 ; Woodward v. Cora., 7 S. W. Rep. 613 (Ky.) ; Phenix Ins. Co. v. Burdett, 112 Ind. 204. A discrimination between local freight on railroads and that which is extra-territorial is not personal, and therefore not forbidden by this clause of the Constitution. Shipper v. Pennsyl- vania R. R. Co., 47 Penn. St. 338. This clause does not forbid requiring security for costs from non-resident plaintiffs. Cummings i-. Wiiigo, 10 S. E. Rep. 107 (S. C). See, for taxes which are forbid- den by it, post, 595, note. ^ Extradition as between the States. — The return by one State of fugitives from jus- tice which have fled to it from another State is only made a matter of rightful demand by the provisions of the federal Constitution. In the absence of such provisions, it might be provided for by State law; but the Constitution makes that obligatory which otherwise would rest in the imperfect and uncertain re- quirements of inter-state comity. The subject has received much attention from the courts when having occasion to con- sider the nature and extent of the consti- tutional obligation. It has also been the subject of many executive papers ; and several controversies between the execu- tives of New York and those of more southern States are referred to in the re- cent Life of William H. Seward, by his son. The following are among the judi- cial decisions : The offence for which ex- tradition maybe ordered need not have been an offence either at the common law or at the time the Constitution was adopted ; it is sufficient that it was so at the time the act was committed, and when demand is made. Matter of Clark, 9 Wend. 212 ; People v. Donohue, 84 N. Y. 438 ; Johnston v. Riley, 13 Ga. 97 ; Mat ter of Fetter, 23 N. J. 311 ; Matter of Voorhees, 32 N. J. 141 ; Morton v. Skin- ner, 48 Ind. 123 ; Matter of Hughes, Phill. (N. C.) 57; Kentucky v. Dennison, 24 How. 66 ; Ex parte Reggel, 114 U. S. 642 ; In re Hooper, 52 Wis. 699. The offence must have been actually committed within the State making the demand, and the accused must have fled there- from. Ex parte Smith, 3 McLean, 121 ; Jones V. Leonard, 50 Iowa, 106 ; s. o. 32 Am. Rep. 116; Hartman v. Aveline, 63 Ind. 344; Wilcox v. Nolze, 34 Ohio St. 520. To be a fugitive it is not necessary 26 CONSTITUTIONAL LIMITATIONS. [oh. II. credit shall be given in each State to the public acts, records, that one should hare left the State after indictment found, or to avoid prosecu- tion ; but simply that, having committed a crime witliin it, he is when sought found in another State. Roberts v. Reilly, 116 U. S. 80 ; State v. Eiohter, 37 Minn. 436. The accused may be arrested to await demand. State v. Buzine, 4 Harr. 57'2 ; Ex parte Cubreth, 49 Cal. 436; Ex parte Bosenblat, 51 Cal. 285. See TuUis v. .Fleming, 69 Ind. 15. But one cannot lawfully be arrested on a telegram from officers in another State and without warrant. Malcolmson o. Scott, 56 Mich. 459. But he cannot be surrendered be- fore formal demand is made, and parties who seize and deliver him up without demand will be liable for doing so. Botts V. Williams, 17 B. Monr. 677. Still if he is returned without proper papers to the State from whence he fled, this will be no sufficient ground for his discharge from custody. Dow's Case, 18 Penn. St. 37. Even forcible and unlawful abduction of a citizen gives a State no right to demand his release. Mahon v. Justice, 127 U. S. 700. The question whether after such abduction in another country a State court will try a person, is not a Federal question. Ker v. Illinois, 119 U. S. 436. The charge must be made before a magis- trate of the State where the offence was committed. Smith v. State, 21 Neb. 652. The demand is to be made by the execu- tive of the State, by which is meant the governor: Commonwealth v. Hall, 9 Gray, 262 ; and it is the duty of the ex- ecutive of the State to which the offender has fled to comply : Johnston v. Eiley, 13 Ga. 97 ; Ex parte Swearingen, 13 S. C. 74; People v. Pinkerton, 77 N. Y. 245; Work B. Corrington, 34 Ohio St. 64 ; s. c. 32 Am. Bep. 345 ; but if he refuses to do BO, the courts have no power to compel him : Kentucky v. Dennison, 24 How. 66 ; Matter of Manchester 5 Cal. 237. It is his duty to determine m some legal way whether the person is a fugitive from jus- tice ; the mere requisition is not enough ; but his determination is prima facie suffi- cient. .Ba; parte Reggel, 114 U.S. 642; Koberts v. Reilly, 116 U. S. 80. See In re Jackson, 2 Flipp. 183. There must be a showing of sufficient cause for the arrest before , the requisition can issue ; but after it is issued and complied with, it is competent for the courts of either State on habeas corpus to look into the papers, and if they show no sufficient legal cause, to order the prisoner's dis* charge. Ex parte Smith, 3 McLean, 121 ; Matter of Clark, 9 Wend. 212; Matter of Manchester, 5 Cal. 237 ; Matter of Hey- ward, 1 Sandf . 701 ; Ex parte White, 49 Cal. 434 ; State v. Hufeord, 28 Iowa, 391 ; People w. Brady, 66 N. Y. 182 ; Kings- bury's Case, 106 Mass. 22.3 ; Exparte Mc- Kean, 3 Hughes, 23 ; Jones v. Leonard, 50 Iowa, 106 ; s. c. 32 Am. Rep. 116 ; Ex parte Powell, 20 Fla. 806 ; State v. Rich- ardson, 34 Minn. 115; In re Mohr, 73 Ala. 503. As to the showing required, see State u. Swope, 72 Mo. 399; Exparte Sheldon, 34 Ohio St. 319; Ham v. State, 4 Tex. App. 645. If one is brought under extradition proceedings into the State where the crime was committed, he will not be discharged by it for defects in proceedings, except on application of officers of the State from which he has been taken. Ex parte Barker, 87 Ala. 4. The federal courts hare no power to compel the State authorities to fulfil their duties under this clause of the Con- stitution. Kentucky v. Dennison, 24 How. 66. The executive may revoke his war- rant, if satisfied it ought not to hare is- sued. Work V. Corrington, 34 Ohio St. 64 ; 8. c. 32 Am. Rep. 345. Extradition to foreign countries is purely a national power, to be exercised under treaties. Holmes v. Jennison, 14 Pet. 540 ; Ex parte Holmes, 12 Vt. 631 ; People i/. Curtis, 50 N. Y. 321. In the absence of a treaty there is no obligation to deliver a fugitive : U. S. v. Rauscher, 119 U. S. 407 ; but by virtue of such a treaty an American criminal resident in a foreign country gets no right of asylum there so that he may not be removed therefrom by a State except under the prorisions of the treaty. Ker v. Illinois, 119 U. S. 436. Foreign governments must make the ap- plication, not individuals. In re Ferrelle,. 28 Fed., Rep. 878. That where a person is extradited from another country or another State on one charge, he should be discharged if not held upon that, see Commonwealth «. Hawes, 13 Bush, 697 ; In re Cannon, 47 Mich. 481 ; State «. Vanderpool, 39 Ohio St. 272 ; Blandf ord w. State, 10 Tex. App. 627 ; State v. HaU, CH. II.] THE CONSTITUTION OF THE UNITED STATES. 27 and judicial proceedings of every other State.^ Many cases have 40 Kan. 338; U. S. v. Eauscher, 119 U. S. 407. Contra, State v. Stewart, 60 Wis. 587. See also, Hackney v. Welsh, 107 Ind. 2585 In re Miller, 23 Fed. Eep. 32; Ex parte Brown, 28 Fed. Rep. 653. 1 Const, of U. S. art. 4. Tliis covers territorial judgments. Suesenbach v. Wagner, 42 N. W. Rep. 925 (Minn. ). Tiiis clause of the Constitution has been the subject of a good deal of discussion in the courts. It is well settled that if the record of a judgment shows that it was rendered without service of process or appearance of the defendant, or If that' fact can be shown without contradicting the recitals of the record, it will be treated as void in any other State, notwithstand- ing this constitutional provision. Kibbe v. Kibbe,'Kirby, 119; Aldrich v. Kinney, 4 Conn. 380 ; Middlebrooks v. Ins. Co., 14 Conn. 301 ; Wood v. Watkinson, 17 Conn. 500; Bartlett v. Knight, 1 Mass. 401; Bissell V. Briggs, 9 Mass. 462 ; Hall u. WilUams, 6 Pick. 232; Woodworth v. Tremere, 6 Pick. 354 ; Gleason v. Dodd, 4 Met. 333 ; Commonwealth u. Blood, 97 Mass. 538 ; Edson v, Edsou, 108 Mass. 590 ; B. c. 11 Am. Rep. 393 ; Kilburn v. Woodworth, 5 Johns. 37 ; Robinson v. Ward's Executors, 8 Jolms. 86 ; Fenton V. Garlick, 8 Johns. 194; Pawling v. Bird's Executors, 13 Johns. 192; Hol- brook V. Murray, 6 Wend. 161 ; Bradshaw V. Heath, 13 Wend. 407 ; Noyes v. Butler, 6 Barb. 613 ; Hoffman v. Hoffman, 46 N. Y. 30; 8. c. 7 Am. Rep. 299 ; Thurber v. Blackbourne, 1 N. H. 242 ; Whittier v. Wendell, 7 N. H. 257 ; Rangely v. Web- ster, 11 N. H. 299; Adams v. Adams, 51 N. H. 388; s. c. 12 Am. Rep. 134; Wil- son V. Jackson, 10 Mo. 331. See McLaU- rine v. Monroe, 30 Mo. 462 ; Bimeler o. Dawson, 5 111. 536 ; Warren v. McCarthy, 25 111. 95 ; Curtiss v. Gibbs, 1 Pa. 406 ; Rogers v. Coleman, Hard. 416; Arm- strong V. Harshaw, 1 Dev. 187 ; Norwood V. Cobb, 24 Texas, 551 ; Rape v. Heaton, 9 Wis. 328 ; McCauley u. Hargroves, 48 Ga. 50 ; s. c. 15 Am. Rep. 660; People o. Dawell, 25 Mi^h. 247 ; s. c. 12 Am. Eep. 260 ; Hood v. State, 56 Ind. 263 ; Lincoln V. Tower, 2 McLean, 478 ; Westervelt v. Lewis, 2 McLean, 511; Railroad Co. v. Trimble, 10 Wall. 367 ; Board of Public Works V. Columbia College, 17 Wall. 521; St. Clair v. Cox, 106 U.S. 350; Van Fossen v. State, 37 Ohio St. 317; Cross V. Armstrong, 44 Ohio St. 613. See Drake v. Granger, 22 Fla. 348. But whether it would be competent to show, in opposition to the recitals of the record, that a judgment of another State was rendered without jurisdiction having been obtained of the person of the defendant, the autliorlties are not agreed. Many cases hold not. Field v. Gibbs, 1 Pet. C. C. 155; Green v. Sarmiento, 1 Pet. C. C. 74 ; Lincoln v. Tower, 2 McLean, 473 ; Westervelt v. Lewis, 2 McLean, 511; Roberts v. Caldwell, 5 Dana, 512 ; Hen- sley V. Force, 7 Eng. 756; Pearoe v. Olney, 20 Conn. 544; Iloxie v. Wright, 2 Vt. 263; Newcomb v. Peck, 17 Vt. 302 ; Willcox V. Kassick, 2 Mich. 165 ; Bimeler V. Dawson, 5 111. 536 ; Welch v. Sykes, 8 111. 197 ; Wetherell v. Stillman, 65 Pa. St. 105; Lance v. Dugan, 13 Atl. Rep. 942 (Pa.) ; Lockhart v. Locke, 42 Ark. 17 ; Caughran v. Gilman, 72 la. 570. Other cases admit such evidence. Starbuck t. Murray, 5 Wend. 148 ; s. c. 21 Am. Dec. 172; Holbrookw. Murray, 6 Wend. 161; Shumway v. Stillman, 6 Wend. 447 ; Bor- den V. Fitch, 15 Johns. 121 ; Bartlet v. Knight, 1 Mass. 401 ; B. o. 2 Am. Dec. 36; Hall b. Williams, 6 Pick. 232; Aid- rich V. Kinney, 4 Conn. 380 ; Bradshaw V. Heath, 13 Wend. 407 ; Hoffman v. Hoff- man, 46 N. Y. 30 ; Gleason v. Dodd, 4 Met. 833 ; Kane v. Cook, 8 Cal. 449; Nor- wood V. Cobb, 24 Texas, 551 : Russell v. Perry, 14 N. H. 152 ; Rape v. Heaton, 9 Wis. 328 ; Carleton v. Bickford, 13 Gray, 591 ; McKay ti. Gordon, 34 N. J. 286; Thompson v. Whitman, 18 Wall. 457; Stewart w. Stewart, 27 W. Va. 167 ; Chunn V. Gray, 51 Texas, 112. In People v. Dawell, 25 Mich. 247, on an indictment for bigamy, in which the defendant re- lied on a foreign divorce from his first wife, it was held competent to show, iu opposition to the recitals of the record, that the parties never resided in the for- eign State, and that the proceedings were a fratfa. To the same effect are Hood v. State, 66 Ind. 263 ; s. c. 26 Am. Rep. 23 ; Penny wit v. Foote, 27 Ohio St. 600 ; Peo- ple V. Baker, 76 N. Y. 78; s. o. 32 Am. Eep. 274; O'Dea v. O'Dea, 101 N. Y. 23; Reed v. Reed, 52 Mich. 117; Smith i>. Smith, 19 Neb. 706. And see further, as to divorce cases, p. 494 et seq. infra. Mr. 28 CONSTITUTIONAL LIMITATIONS. [CH. IL been decided under these several provisions, the most important of which are collected in the marginal notes. .The last provisions that we shall here notice are that the United States shall guarantee to every State a republican form of government,^ and that no State shall grant any title of nobility .2 The purpose of these is to protect a Union founded on republican principles, and composed entirely of republican members, against aristocratic and monarchical innovations.^ So far as a particular consideration of the foregoing provisions falls within the plan of our present work, it will be more con- venient to treat of them in another place, especially as all of them which have for their object the protection of person or property are usually repeated in the bills of rights contained in the State constitutions, and will require some notice at our hands as a part of State constitutional law. Where powers are conferred upon the general government, the exercise of the same powers by the States is impliedly prohibited, wherever the intent of the grant to the national government would be defeated by such exercise. On this ground it is held that the States cannot tax the agencies or loans of the general government ; since the power to tax, if possessed by the States in regard to these objects, might be so exercised as altogether to destroy such agencies, and impair or even destroy the jgational credit.* And where by the national Constitution jurisdiction is Freeman discusses this general subject in him and be enforced in other States. Sims his treatise on Judgments, c. 26. Tlie v. Sims, 75 N. Y. 466, approving Common- same defences may be made to a judg- wealth v. Green, 17 Mass. 516, and disap- ment, when sued in another State, which proving Chase v. Blodgett, 10 N. H. 22, could have been made to it in the State ami State v. Chandler, S Hawks, 893. where rendered : Hampton v. McConnel, The courts of the United States cannot 3 Wheat. 234 ; Mills v. Duryea, 7 Cranch, enforce the penal laws of a State, and 481 ; Steele v. Smith, 7 W. & S. 447 ; where an action was brought in such Bank of the State v. Dalton, 9 How. 522 ; court by a State upon a judgment recov- Scott V. Coleman, 6 Litt. 349 ; s. o. 15 ered in its own courts, the federal court Am. Dee. 71; but no others: Green c. looked back of the judgment to the orig- Van Buskirk, 7 Wall. 139 ; Christmas v. inal demand, and refused to enforce the Russell, 5 Wall. 290 ; Qbee^ver v. Wilson, judgment. Wisconsin v. Pelican Ins. Co;, 9 Wall. 108 ; Wernwag v. Pawling, 5 Gill 127 U. S. 265. &J. 500; 8. c. 25 Am. Dec. 317; Fletcher i Const, of U. S. art. 4, § 4. V. Ferrel, 9 Dana, 372 ; s. o. 35 Am. Dec. 2 Const, of U. S. art. 1, § 10. 143 ; People v. Dawell, 25 Mich. 247 ; 8. c. « Federalist, Nos. 43 and 44. It does 12 Am^ Kep. 260; Dodge v. Coffin, 15 not fall within our province to discuss Kan. 277. A foreign decree not appro- these provisions. They have been much priate to any part of the issue raised by discussed in Congress within a few years, the record is not conclusive collaterally, but in a party, rather than a judicial] Reynolds v. Stockton, 43 N. J. Eq. 211. spirit. See Story on Const. (4th ed.) This provision of the Constitution of c. 41 ; Luther v. Borden, 7 How. 1 ; Texas the United States does not require that v. White, 7 Wall. 700; Cooley, Constitu- disabilities imposed upon a person con- tional Principles, ch. xl. viotedof crime in one State should follow * McCuUooh v. Maryland, 4 Wheat. CH. II.] THE CONSTITUTION OF THE UNITED STATES. 29 given to the national courts with a view to the more efficient and harmonious working of the system organized under it, it is competent for Congress in its wisdom to make that jurisdiction exclusive of the State courts.^ On some other subjects State laws may be valid until the power of Congress is exercised, when they become superseded, either wholly, or so far as they are found inconsistent. The States may legislate on the subject of bank- ruptcy if there be no national bankrupt law.^ State laws for organizing and disciplining the militia are valid, except as they may conflict with national legislation ; ^ and the States may con- stitutionally provide for punishing the counterfeiting of coin * and the passing of counterfeit money ,^ since these acts are offences against the State, notwithstanding they may be offences against the -nation also. The tenth amendment to the Constitution provides that the powe"fs not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States re- spectively, or to the people. And it is to be observed of this in- strument, that being framed for the establishment of a national government, it is a settled rule of construction that the limitations it imposes upon the powers of government are in all cases to be understood as limitations upon the government of the Union only, except/where the States are expressly mentioned.® As illustra~ tions, the sixth and seventh amendments to the Constitution may be mentioned. These constitute a guaranty of the right of trial by jury ; but, as they do not mention the States, they are not to be understood as restricting their powers ; and the States may, if they choose, provide for the trial of all offences against the States, 816, 427 ; Weston ». Charleston, 2 Pet. v. Ohio, 5 How. 410 ; Smith v. Maryland, 449. See cases collected, post, pp. 690, 591. 18 How. 71 ; Kelly v. Pittsburgh, 104 U. S. 1 Martin v. Hunter's Lessee, 1 Wheat. 78 ; Presser v. Illinois, 116 U. S. 252 ; 304 ; The Moses Taylor v. Hammons, 4 Spies v. Illinois, 123 U. S. 131 ; Buona- Wall. 411 ; The Ad Hine v. Trevor, 4 parte v. Camden & Amboy R. R. Co., Wall. 555. And see note to these oases Baldw. 220; James v. Commonwealth, in the Western Jurist, Vol. I. p. 241. 12 S. & B. 220 ; Barker w. People, 3 Co\^ 2 Sturges V. Crowninshield, 4 Wheat. 686 ; Colt v. Eves, 12 Conn. 243 ; Jane v. 122 ; McMillan v. McNeill, 4 Wheat. 209. Commonwealth, 3 Met. (Ky.) 18 ; Lin- And see post, pp. 356, 357. coin v. Smith, 27 Vt. 328 ; Matter of Smith, » Houston V. Moore, 5 Wheat. 1, 51. 10 Wend. 449; Stat* v. Barnett, 3 Kan. « Harlan v. People, 1 Doug. (Mich.) 250; Reed v. Rice, 2 J. J. Marsh. 45; 207. s. 0. 19 Am. Dec. 122 ; North Mo. R. R. 6 Pox V. Ohio, 5 How. 410 ; United Co. ». Maguire, 49 Mo. 490 ; Lake Erie, ' States 0. Marigold, 9 How. 560. And see &c. R. R. Co. v. Heath, 9 Ind. 558 ; Pres- Hendrick's Case, 5 Leigh, 707 ; Jett v. cott w. State, 19 Ohio St. 184 ; State ». Commonwealth, 18 Grat. 933; State v. Shumpert, 1 S. C. 85; Commonwealth Rankin, 4 Cold. 145 ; Moore ». People, 14 v. Hitchings, 5 Gray, 482 ; Bigelow v. jjo^. 13, Bigelow, 120 Mass. 320; Boyd v. Ellis, 11 6 Barron v. Baltimore, 7 Pet. 243 ; Liv- Iowa, 97 ; Campbell v. State, 11 Ga. 353; ingston's Lessee v. Moore, 7 Pet. 469 ; Fox State v. Carre, 26 La. Ann. 377 ; Purvear 30 CONSTITUTIONAL LIMITATIONS. [CH. IL as well as for the trial of civil cases in the State courts, without the intervention of a jury, or by some different jury from that known to the common law.-' With other rules for the construction of the national Constitu- tion we shall have little occasion to deal. They have been the subject of elaborate treatises, judicial opinions, and legislative debates, which ai'e familiar alike to the legal profession and to the public at large. So far as that instrument apportions powers to the national judiciary, it must be understood, for the most part, as simply authorizing Congress to pass the necessary legislation for the exercise of those powers by the federal courts, and not as directly, of its own force, vesting them with that authority. The Constitution does not, of its own force, give to national courts jurisdiction of the several cases which it enumerates, but an act of Congress is essential, first, to create courts, and afterwards to apportion the jurisdiction among them. The exceptions are of those few cases of which the Constitution confers jurisdiction upon the Supreme Court by name. And although the courts of the United States administer the common law in many cases,* they can recognize as offences against the nation only those' acts which are made criminal, and their punishment provided for, by acts of Congress.** It is otherwise in the States ; for the State V. Commonwealth, 5 Wall. 475 ; Twitchell reasoning which leads to this conclusion V. Commonwealth, 7 Wall. 321. is simple, obvious, and admits of but little ^ Twitchell v. Commonwealth, 7 Wall, illustration. The powers of the general 321 ; Justices v. Murray, 9 Wall. 274 ; government are made up of concessions Edwards v. Elliott, 21 Wall. 532 ; Walker from the several States : whatever is not V. Sauvinet, 92 U. S. 90 ; Munn v. Illinois, expressly given to the former, the latter 94 U. S. 113; Huston v. Wadswortli, 5 expressly reserve. The judicial power Col. 213. See Butler o. State, 97 Ind. of the United States is a constitutional 378 ; People «. Williams, 35 Hun, 516. part of these concessions : that power is A State may give a court of equity juris- to be exercised by courts organized for diction of a suit to establish an equitable the purpose, and brought into existence interest in land. Church v. Kelsey, 121 by an effort of the legislative power of U. S. 282. The seventh amendment has the Union. Of all the courts which the no application to demands against the United States may, under their general government, or to counter-claims. Mc- powers, constitute, one only, the Supreme Elrath v. United States, 102 U. S. 426. Covfrt, possesses jurisdiction derived im- 2 Townsend v. Todd, 91 U. S. 452; mediately from the Constitution, and of Elmwoodw. Marcy, 92 U. S. 289; Rail- which the legislative power cannot de- road Co. u. Georgia, 98 U. S. 369. prive it. All other courts created by the 8 Demurrer to an indictment for a libel general government possess no jurisdic- npon the President and Congress. By tion but what is given them by the power the court : " The only question which -that created them, and can be vested with this case presents is whether the circuit none but what the power ceded to the courts can exercise a common-law juris- general government will authorize it to diction in criminal cases. . . .'The gen- confer. It is not necessary to inquire eral acquiescence of legal men shows the whether the general government, in any prevalence of opinion in favor of the neg- and what extent, possesses the power of ative of the proposition. The course of conferring on its courts a jurisdiction in CH. II.] THE CONSTITUTION OF THE UNITED STATES. 31 courts take notice of, and punish as crimes, those acts which were crimes at tlie common law, except in a few States where it is otherwise expressly provided by statute or Constitution. cases similar to the present ; it is enough that such jurisdiction has not been con- ferred by any legislative act, if it does not result to those courts as a conse- quence of their creation." United States V. Hudson, 7 Cranch, 32. See United States V. Coolidge, 1 Wheat. 415. " It is clear there can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent States, each of which may have its local usages, customs, and com- mon law. There is no principle which pervades the Union, and has the authority of law, that is not embodied in the Con- stitution or laws of the Union. The com- mon law could be made a part of our fed- eral system only by legislative adoption." Per McLean, J., Wheaton v. Peters, 8 Pet. 691. See also Kendall v. United States, 12 Pet. 524 ; Lorman v. Clarke, 2 McLean, 668; United States v. Lancaster, 2 Mc- Lean, 431 ; United States v. New Bedford Bridge, 1 Wood. & M. 403 ; United States V. Wilson, 8 Blatch. 435 ; United States I;. Barney, 5 Blatch. 294. As to the adoption of the common law by the States, see Van Ness v. Pacard, 2 Pet. 137, 144, per Story, J. ; and post, p. 35, and cases cited in notes. 32 CONSTITUTIONAL LIMITATIONS. [CH, III. CHAPTER III. THE POEMATION AND AMENDMENT OP STATE CONSTITUTIONS. The Constitution of the United States assumes the existence of thirteen distinct State governments, over whose people its authority was to be extended if ratified by conventions chosen for the purpose. Each of these States was then exercising the powers of government under some form of written constitution, and that instrument would remain unaifected by the adoption of the national Constitution, except in those particulars in which the two would come in conflict ; and as to those, the latter would modify and control the former.^ But besides this fundamental law, every State had also a body of laws, prescribing the rights, duties, and obligations of persons within its jurisdiction, and establishing those minute rules for the various relations of life which cannot be properly incorporated in a constitution, but must be left to the regulation of the ordinary law-making power. By far the larger and more valuable portion of that body of laws consisted of the common law of England, which had been transplanted in the American wilderness, and which the colo- nists, now become an independent nation, had found a shelter of protection during all the long contest with the mother country, brought at last to so fortunate a conclusion. The common law of England consisted of those maxims of freedom, order, enterprise, and thrift which had prevailed in the conduct of public affairs, the management of private business, the regulation of the domestic institutions, and the acquisition, con- trol, and transfer of property from time immemorial. It was the outgrowth of the habits of thought and action of the people, and was modified gradually and insensibly from time to time as those habits became modified, and as civilization advanced, and new in- ventions introduced new wants and conveniences, and new modes of business. Springing from the very nature of the people them- selves, and developed in their own experience, it was obviously the body of laws best adapted to their needs, and as they took with them their nature, so also they would take with them these I Livingston v. Van Ingen, 9 Johns. Dargan, 45 Ala. 810 ; Keal o. Delaware, 507 ; State «. Cape Girardeau, &o. R. B. 103 U. S. 370. Co., 48 Mo. 468 ; Mayor, &o. of Mobile v. CH. III.] . FORMATION AND AMENDMENT OF CONSTITUTIONS. 33 laws whenever they should transfer their domicile from one coun- try to another. To eulogize the common law is no part of our present purpose. Many of its features were exceedingly harsh and repulsive, and gave unmistakable proofs that they had their origin in times of profound ignorance, superstition, and barbarism. The feudal system, which was essentially a system of violence, disorder, and rapine,^ gave birth to many of the maxims of the common law ; aud some of these, long after that system has passed away, may still be traced in our law, especially in the rules which govern the acquisition, control, and enjoyment of real estate. The criminal code was also marked by cruel and absurd features, some of which have clung to it with wonderful tenacity, even after tlie most stupid could perceive their inconsistency with justice and civilization. But, on the whole, the system was the best founda- tion on which to erect an enduring structure of civil liberty which the world has ever known. It was the peculiar excellence of the common law of England that it recognized the worth, and sought especially to protect the rights and privileges, of the individual man. Its maxims were those of a sturdy and independent race, accustomed in an unusual degree to freedom of thought and ac- tion, and to a share in the administration of public affairs ; and arbitrary power and uncontrolled authority were not recognized in its principles. Awe surrounded and majesty clothed the king, but the humblest subject might shut the door of his cottage against him, and defend from intrusion that privacy which was as sacred as the kingly prerogatives.^ The system was the oppo- site of servile ; its features implied boldness and independent self-reliance on the part of the people ; and if the criminal code was harsh, it at least escaped the inquisitorial features which were apparent in criminal procedure of other civilized countries, and which have ever been fruitful of injustice, oppression, and terror. For several hundred years, however, changes had from time to time been made in the common law by means of statutes. Origi- nally the purpose of general statutes was mainly to declare and reaifirm such common-law principles as, by reason of usurpations and abuses, had come to be of doubtful force, and which, there- fore, needed to be authoritatively announced, that king and sub- 1 "A feudal kingdom was a confed- was either a cipher or a tyrant, and a eracy of a numerous body, who lived in great portion of the people were reduced a state of war against each other, and of to personal slavery." Mackintosh, His- rapine towards all mankind ; in which the tory of England, c. 3. king, according to his ability and vigor, * See post, p. 364. 8 34 CONSTITUTIONAL LIMITATIONS. . [CH. IIL ject alike might understand and observe tliem. Such was the purpose of the first great statute, promulgated at a time when the legislative power was exercised by the king alone, and which is still known as the Magna Charta of King John.^ Such also was the purpose of the several confirmations of that charter, as well as of the Petition of Right,^ and the Bill of Rights,^ each of which became necessary by reason of usurpations. But further statutes also became needful because old customs and modes of business were unsuited to new conditions of things when property had become more valuable, wealth greater, commerce more ex- tended, and when all these changes had brought with them new desires and necessities, and also new dangers against which society as well as the individual subject needed protection. For this reason the Statute of Wills * and the Statute of Frauds and Perjuries ® became important ; and the Habeas Corpus Act ^ was also found necessary, not so much to change the law,^ as to se- cure existing principles of the common law against being habit- ually set aside and violated by those in power. From the first the colonists in America claimed the benefit "and protection of the common law. In some particulars, however, the common law as then existing in England was not suited to their condition and circumstances in the new country, and those partic- ulars they omitted as it was put in practice by them.* They also 1 It is justly observed by Sidney that ^ " The common law of England is not " Magna Charta was not made to restrain to be taken, in all respects, to be that of the absolute authority, for no such thing America. Our ancestors brought with was in being or pretended (the folly of them its general principles, and claimed such visions seeming to have been re- it as their birthright; but they brought served to complete the misfortunes and with them and adopted only that portion ignominy of our age), but it was to assert which was applicable to their condition." the native and^ original liberties of our Story, J., in Van Ness v. Pacard, 2 Pet. nation by the confession of the king then 137. " The settlers of colonies in Amer- being, that neither lie nor his successors ica did not carry with them the laws of should any way encroach upon them." the land as being bound by them wher- Sidney on Government, c. 3, sec. 27. ever they should settle. They left the 2 1 Charles I. c. 1. realm to avoid the inconveniences and » 1 William and Mary, sess. 2, c. 2. hardships they were under, where some ' 32 Henry VIII. c. 7, and 34 & 35 of these laws were in force j particularly Henry VIII. c. 5. ecclesiastical laws, those for payment of 6 29 Charles IL c. 3. tithes, and others. Had it been nnder- ^ 31 Charles II. c. 2. stood that they were to carry these laws ' " I dare not advise to oast the laws with them, they had better have stayed' into a new mould. The work which I at home among their friends, unexposed propound tendeth to the pruning and to the risks and toils of a new settlement. grafting of the law, and not the plowing They carried with them a right to such up and planting it again, for such a re- parts of laws of the land as they should move I should hold for a perilous innova- judge advantageous or useful to them ; a lion." Bacon's Works, Vol. II. p. 231, right to be free from those they thought Phil. ed. 1852. hurtful, and a right to make such others CH. III.]' FORMATION AND AMENDMENT OF CONSTITUTIONS. 35 claimed the benefit of such statutes as from time to time had been enacted in modification of this body of rules.^ And when the difficulties with the home government sprung up,' it was a source of immense moral power to the colonists that they were able to show that the rights they claimed were conferred by the common law, and that the king and Parliament were seeking to deprive them of the common birthright of Englishmen. Did Par- liament attempt to levy taxes in America, the people demanded the benefit of that maxim with which for many generations every intelligent subject had been familiar, that those must vote the tax as they should think necessary, not in- fringing the general rights of English- men; and such new laws they were to form as agreeable as might be to the laws of England." Franklin, Works by Sparks, "Vol. IV. p. 271. See also Chisholm v. Georgia, 2 Dall. 419; Patterson v. Winn, 5 Pet. 233 ; Wheaton v. Peters, 8 Pet. 591 ; Pollard V. Hagan, 3 How. 212 ; Common- wealth V. Leach, 1 Mass. 59 ; Common- wealth V. Knowlton, 2 Mass. 530 ; Com- monwealth ii. Hunt, 4 Met. Ill ; Pearce V. Atwood, 13 Mass. 324 ; Sackett v. Sackett, 8 Pick. 309; Marks v. Morris, 4 Hen. & M 463 ; Mayo v. Wilson, 1 N. H. 53 ; Houghton v. Page, 2 N. H. 42; State V. Rollins, 8 N. H. 550 ; State v. Buchanan, 5 H. & J. 356 ; Sibley v. Williams, 3 G. & J. 62'; State v. Cummings, 33 Conn. 260; Martin w. Bigelow, 2 Aiken, 187; Linds- ley V. Coats, 1 Ohio, 243 ; Bloom v. Ricli- ards, 2 Ohio St. 287 ; Lyle v. Richards, 9 S. & R. 322 ; State v. Campbell, T. U. P. Charlt. 166 ; Craft v. State. Bank, 7 Ind. 219; Dawson v. Coffman, 28 Ind. 220; Bogardus v. Trinity Church, 4 Sandf. Ch. 633 ; Morgan o. King, 30 Barb. 9 ; Lan- sing 7). Stone, 37 Barb. 15 ; Simpson v. State, 5 Yerg. 356; Crouch v. Hall, 16 III. 263; Brown v. Pratt, 3 Jones (N. C.) Eq. 202 ; Stout V. Keyes, 2 Doug. (Mich. ) 184 ; Lorman v. Benson, 8 Mich. 18 ; Pierson V. State, 12 Cal. 149 ; Norris v. Harris, 15 Cal. 226; Powell v. Sims, 5 W. Va. 1; CoUey V. Merrill, Me. 55 ; State v. Ca- wood, 2 Stew. 360 ; Carter v. Balfour, 19 Ala. 814; Barlow v. Lambert, 28 Ala. 704; Goodwin v. Thompson, 2 Greene (Iowa), 329 ; Wagner v. Bissell, 3 Iowa, 396 ; Noonan v. State, 9 Miss. 562 ; Pow- ell V. Brandon, 24 Miss. 343 ; Coburn v. Harvey, 18 Wis. 147 ; Reaume v. Cham- bers, 22 Mo. 36 ; Hamilton v. Kneeland, 1 Nev. 10; People i\ Green, 1 Utah, 11; Thomas v. Railroad Co., 1 Utah, 232; Reno Smelting Works v. Stevenson, 21 Pac. Rep. 317 (Nev.). The courts of one State will presume the common law of a sister State to be the same as their own, in the absence of evidence to the contrary. Dunn v. Adams, 1 Ala. 527, s. c. 85 Am. Dec. 42 : Abell v, Douglass, 4 Denio, 305 ; Kermott v. Ayer, 11 Mich. 181 ; Schurman v. Marley, 29 Ind. 458 ; Buckles V. EUers, 72 Ind. 220; Tinkler V. Cox, 68 111. 119 ; Flagg v. Baldwin, 38 N. J. Eq. 219 ; Eureka Springs Ry. Co. v. Timmons, 11 S. W. Rep. 690 (Ark.). So of the law of a foreign country. Carpenter V. Grand Trunk Ry. Co., 72 Me. 388. So, that statutory modifications of the com- mon law are the same. Shattuck v. Chandler, 20 Pac. Rep. 225 (Kan.) ; Bu- chanan V. Hubbard, 21 N. B. 538 (Ind.). But see Atchisoii, &c. R. R. Co. o. Belts, 15 Pac. Rep. 821 (Kan.). 1 The acts of Parliament passed after the settlement of a. colony were not in force therein, unless made so by express words, or by adoption. Commonwealth V. Lodge, 2 Grat. 579; Pemble v. Clifford, 2 McCord, 31. See Swift v. Tousey. 5 Ind. 196 ; Baker v. Mattocks, Quincy, Ti ; Feohheimer u. Washington, 77 Ind. 366 ; Ray V. Sweeney, 14 Bush, 1 ; Lavalle v. Strobel, 89 111. 370 ; Cathcart v. Robinson, 5 Pet. 264. Those amendatory of the common la-w, if suited to the condition of things in America, were generally adopted by tacit consent. For the differing views taken by English and American states- men upon the general questions here dis- cussed, see the observations by Governor Pownall, and the comments of Franklin thereon, 4 Works of Franklin, by Sparks, 271. 36 CONSTITUTIONAL LIMITATIONS. [CH. III. ■who are to pay it.^ Did Parliament order offenders against the laws in America to be sent to England for trial, every American was roused to indignation, and protested against the trampling under foot of that time-honored principle, that trials for crime must be by a jury of the vicinage. Contending thus behind the bulwarks of the common law. Englishmen would appreciate and sympathize with their position, and Americans would feel doubly strong in a cause that not only was right, but the justice of which must be confirmed by an appeal to the consciousness of their enemies themselves. The evidence of the common law consisted in part of the declar- atory statutes we have mentioned,^ in part of the commentaries of such men learned in the law as had been accepted as authority, but mainly in the decisions of the courts applying the law to ac- tual controversies. While colonization continued, — that is to say, until the war of the Revolution actually commenced, — these decisions were authority in the colonies, and the changes made in the common law up to the same period were operative in America also if suited to the condition of things here. The opening of the war of the Revolution is the point of time at which the continuous stream of the common law became divided, and that portion which had been adopted in America flowed on by itself, no longer subject to changes froiin across the ocean, but, liable still to be gradually modified through changes in the modes of thought and of business among the people, as well as through statutory enactments. The colonists also had legislatures of their own, by which laws had been passed which were in force at the time of the separa- tion, and which remained unaffected thereby. When, therefore, they emerged from the colonial condition into that of indepen- dence, the laws which governed them consisted, first, of the com- 1 " The blessing of Judah and Issachar courage. So that you may conclude that will never meet ; that the same people or no people overcharged with tribute is fit nation should be both the lion's whelp for empire." Lord Bacon on the True and the ass between burdens ; neither Greatness of Kingdoms, will it be that a people overlaid with taxes '■' These statutes upon the points should ever become valiant and martial, which are covered by them are the best It is true that taxes levied by consent evidence possible. They are the living of the State do a.'bate men's courage less, charters of English liberty, to the present as it hath been seen notably in the exer- day ; and as the forernmiers of the Amer- cise of the Low Countries, and in some ican constitutions and the source from degree in the subsidies of England, for which have been derived many of the you must note that we speak now of the most important articles in their bills of heart and not of the purse; so that al- rights, they are constantly appealed to though the same tribute or tax laid by when personal liberty or private rights consent or by imposing be all one to tlie are placed in apparent antagonism to the purse, yet it works diversely upon the olaims of government. CH. III.] FOKMATION AND AMENDMENT OF CONSTITUTIONS. 37 men law of England, so far as they had tacitly adopted it as suited to their condition ; second, of the statutes of England, or of Great Britain, amendatory of the common law, which they had in like manner adopted ; and, third, of the colonial statutes.^ The first and second constituted the American common law, and by this in great part are rights adjudged and wrongs redressed in the American States to this day.^ 1 The like condition of things is found to exist in the new States formed and ad- mitted to the Union since the Constitu- tion was adopted. Congress creates ter- ritorial governments of different grades, but generally with plenary legislative power either in the governor and judges, a territorial council, or a territorial legis- lature chosen by the people; and the authority of this body extends to all right- ful subjects of legislation, subject, how- ever, to the disapproval of Congress. Vin- cennes University v. Indiana, 14 How. 268; Miners' Bank v. Iowa, 12 How. 1. Thus the Territory of Oregon had power to grant a legislative divorce. Maynard v. Hill, 125 U. S. 190. A territorial legis- lature may empower a probate court to grant a divorce. Whitmore v. Harden, 3 Utah, 121. The legislation, of course, must not be in conflict with the law of Congress conferring the power to legis- late, but a variance from it may be sup- posed approved by that body, if suffered to remain without disapproval for a series of years after being duly reported to it. Clinton v. Englebrect, 13 Wall. 434, 446. See Williams v. Bank of Michigan, 7 Wend. 539; Swan v. Williams, 2 Mich. 427 ; Stout v. Hyatt, 13 Kan. 232 ; Him- man v. Warren, 6 Oreg. 408. As to the complete control of Congress over the Ter- ritories, see United States v. Reynolds, 98 U. S. 145; National Bank v. Yankton, 101 U. S. 129. It may exclude polygamists from the right to vote. Murphy v. Ram- sey, 114 U. S. 15. In Treadway v. Schnauber, 1 Dak. 236, it was decided that without express authority a terri- torial legislature could not vote aid to a railroad company. ^ A few of the States, to get rid of confusion in the law, deemed it desirable to repeal the acts of Parliament, and to re-enact such portions of them as were re- garded important here. See the Michi- gan repealing statute, copied from that of Virginia, in Code of 1820, p. 459. Others named a date or event, and provided by law that English statutes passed subse- quently should not be of force within their limits. In some of the new States there were also other laws in force than those to which we have above alluded, as for example, the ordinance of 1787, in the northwest Territory. There has been much discussion of the question whether that ordinance was superseded in each of the States formed out of that Terri- tory by the adoption of a State constitu- tion, and admission to the Union. In Hogg V. The Zanesville Canal Manufac- turing Co., 5 Ohio, 410, it was held that the provision of the ordinance that the navigable waters of the Territory and the carrying-places between should be common highways, and forever free, was permanent in its obligation, and could not be altered without the consent both of the people of the State and of the United States, given through their representa- tives. " It is an article of compact ; and until we assume the principle that the sovereign power of a State is not bound by compact, this clause must be consid- ered obligatory." Justice McLean and Judge Leavitt, in Spooner v. McConnell, 1 McLean, 337, examine tliis subject at considerable length, and both arrive at the same conclusion with the Ohio cotu:t. The like opinion was subsequently ex- pressed in Palmer «. Commissioners of Cuyahoga Co., 3 McLean, 226, and in Jolly ». Terre Haute Drawbridge Co., McLean, 237. See also United States v. New Bedford Brdge, 1 Wood. & M. 401 ; Strader v. Graham, 10 How. 82 ; Doe v. Douglass, 8 Blackf. 12 , Connecticut Mu- tual Life Ins. Co. v. Cross, 18 Wis. 109 ; Milwaukee Gaslight Co. v. Schooner Gamecock, 23 Wis. 144 ; Wisconsin River Improvement Co. e. Lyons, 30 Wis. 61 ; Attorney General v. Eau Claire, 37 Wis. 400 1 Keokuk v. Packet Co., 45 Iowa, 196. Compare Woodburn v. Kilbourn Manuf. Co., 1 Abb. U. S. 168 ; g. c. 1 Biss. 546. 38 CONSTITUTIONAL LIMITATIONS. [CH. IIL Every colony had also its charter, emanating from the Crown, and constituting its colonial constitution. All but two of these were swept away by the whirlwind of revolution, and others sub- stituted which had been framed by the people themselves, through the agency of conventions which they had chosen. The excep- tions were those of Connecticut and Rhode Island, each of which States had continued its government under the colonial charter, finding it sufficient and satisfactory for the time being, and accepting it as the constitution for the State.^ New States have since, from time to time, formed constitutions, But the contrary doctrine seeras to have been established by later decisions. The city of Chicago closed the draws in bridges over the Chicago river during certain hours, and it was objected that it had no right to do so because of the ordinance, but the right was sustained. Whatever the limitation upon the powers of Illinois, " whether from the ordinance of 1787 or the legislation of Congress, it ceased to liave any operative force ex- cept as voluntarily adopted by her after she became a State of the Union. . . . Illi- nois therefore could afterwards exercise the same power over rivers within her limits " that the original States did over rivers within them. Escanaba Co. v. Chicago, 107 U. S. 678. The same rule is laid down in Huse v. Glover, 119 U. S. 543 ; Sands t>. Manistee River Imp. Co., 123 U. S. 288 ; Higgins v. Farmers' Ins. Co., 60 la. 50, >ind in the early cases of La Plaisance Bay Harbor Co. v. Monroe, Walk. Ch. 155, and Depew v. Trustees, 5 Ind. 8 ; and with reference to tlie enabling acts of Oregon, Louisiana, and California, in Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1 ; Hamilton v. Vicksburg, &c. E. R. Co., 119 U. S. 280 ; Cardwell v. American Bridge Co., 113 U. S. 205; People V. Potrero, &c. R. R. Co., 67 Cal. 166. And the provision that the rivers Shall be forever free refers not to physical obstructions, but to the imposition of du- ties for the use of the navigation, and any discrimination against citizens of other States. Escanaba Co. v. Chicago ; Huse V. Glover, supra, and cases last cited. But a State may charge tolls for the use of im- provements it has made in its navigable rivers. Huse v. Glover; Sands v. Manistee River Imp. Co., supra ; Palmer v. Com'rs, 3 McLean, 226 ; Spooner v. McConnell, 1 McLean, 337. See also, post, 728-780. In some of the States formed out of the territory acquired by tlie United States from foreign powers, traces will be found of the laws existing before the change of government. Louisiana has a code pecu- liar to itself, based upon the civil law. Much of Mexican law, and especially as regards lands and land titles, is retained in the systems of Texas aiid California. In Michigan, when the acts of Parlia- ment were repealed, it was also deemed important to repeal all laws derived from France, through the connection with the Canadian provinces, including the Coutume de Paris, or ancient French common law. In the mining States and Territories a peculiar species of common law, relating to mining rights and titles, has sprung up, having its origin among the miners, but recognized and enforced by the courts. Regarding the canon and ecclesiastical law, and their force in this country, see Crump V. Morgan, 3 Ired. Eq. 91 ; Le Bar- ron V. Le Barron, 35 Vt. 365. That con- stitutions are supposed to be framed in reference to existing institutions, see Pope u. Phifer, 3 Heisk. 686. A change in a constitution cannot retroact upon legis- lation so as to enlarge its scope. Dewar V People, 40 Mich. 401. See UuUara v. Willson, 53 Mich. 392. 1 It is worthy of note that the first case in which a legislative enactment was declared unconstitutional and void, on the ground of incompatibility with the con- stitution of the State, was decided under one of these royal charters. The case was that of Trevett v. Weeden, decided by the Superior Court of Rhode Island in 1786. See Arnold's History of Rhode Island, Vol. II. e. 24. The case is further referred to, post, p. 193, note. The next case to meet the same fate was Bayard o. Singleton,Mar- tin (N. C), 48, decided in November, 1789. CH. UI.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 39 either regularly in pursuance of enabling acts passed by Congress, or irregularly by the spontaneous action of the people, or under the direction of the legislative or executive authority of the Terri- tory to which the State succeeded. Where irregularities existed, they must be regarded as having been cured by the subsequent admission of the State into the Union by Congress ; and there were not wanting in the case of some States plausible reasons for insisting that such admission had become a matter of right, and that the necessity for an enabling act by Congress was dispensed with by the previous stipulations of the national government in acquiring the territory from which such States were formed.^ Some of these constitutions pointed out the mode for their own modification ; others were silent on that subject ; but it lias been assumed that in such cases the power to originate proceedings for that purpose rested with the legislature of the State, as the de- partment most nearly representing its general sovereignty; and this is doubtless the correct view to take of this subject.^ The theory of our political system is that the ultimate sover- eignty is in the people, from whom springs all legitimate author- ity.^ The people of the Union created a national constitution, and conferred upon it powers of sovereignty over certain subjects, and the people of each State created a State government, to exercise the remaining powers of sovereignty so far as they were disposed to allow them to be exercised at all. By the constitution which they establish, they not only tie up the hands of their ofScial agencies, but their own hands as well ; and neither the officers of the State, nor the whole people as an aggregate body, are at lib- erty to take action in opposition to this fundamental law. But in every State, although all persons are under the protection of the government, and obliged to conform their action to its laws, there are always some who are altogether excluded from participation in the government, and are compelled to submit to be ruled by an authority in the creation of which they have no choice. The 1 Tills was the claim made on behalf ment of Congressional Debates, Vol. of Michigan; it being insisted that the 'XIII. pp. 69-72. And as to the right citizens, under the provisions of the ordi- of the people of a Territory to originate nance of 1787, whenever the Territory ao- measures looking to an application for quired the requisite population, had an admission to the Union, see Opinions of absolute right to form a constitution and Attorneys-General, Vol. II. p. 726. be admitted to the Union under it. See ^ See Jameson on Constitutional Con- Scott V. Detroit Young Men's Society's ventions, c. 8. Lessee, 1 Doug. (Mich.) 119, and the con- * McLean, J , in Spooner v. McCon- trary opinion in Myers v. Manhattan nell, 1 McLean, 347 ; Waite, Ch. J., In Bank, 20 Ohio, 283. The debates In the Minor v. Happersett, 21 Wall. 162, 172; Senate of the United States on the admis- Campbell's Case, 2 Blafid Ch. 209 ; a. c. sion of Michigan to the Union go fully 20 Am. Dec. 360 ; Beynolds •/. Baker, 6 into this question. See Benton's Abridg- Cold. 221 ; Potter's Dwarris on Stat. c. 1. 40 CONSTITUTIONAL LIMITATIONS. [CH. III. political maxim, that government rests upon the consent of the governed, appears, therefore, to be practically subject to many exceptions; and when we say the sovereignty of the State is vested in the people, the question very naturally presents itself. What are we to understand by The People as used in this connection ? What should he the correct rule upon this subject, it does not fall within our province to consider. Upon this men will theorize ; but the practical question precedes the formation of the Constitu- tion and is addressed to the people themselves. As a practical fact the sovereignty is vested in those persons who are permitted by the constitution of the State to exercise the elective franchise.^ Such persons may have been designated by description in the en- abling act of Congress permitting the formation of the constitu- tion, if any such there were, or the convention which framed the constitution may have determined the qualifications of electors without external dictation. In either case, however, it was essen- tial to subsequent good order and contentment with the govern- ment, that those classes in general should be admitted to a voice in its administration, whose exclusion on the ground of want of capacity or of moral fitness could not reasonably and to the general satisfaction be defended. Certain classes have been almost universally excluded, — the slave, because he is assumed to be wanting alike in the intelli- gence and the freedom of will essential to the proper exercise of the right ; the woman, from mixed motives, but mainly, perhaps, because, in the natural relation of marriage, she was supposed to be under the influence of her husband, and, where the common law prevailed, actually was in a condition of dependence upon and subjection to him ; ^ the infant, for reasons similar to those which exclude the slave ; the idiot, the lunatic, and the felon, on obvious grounds ; and sometimes other classes for whose exclusion it is difficult to assign reasons so generally satisfactory. The theory in these cases we take to be that classes are ex- cluded because they lack either the intelligence, the virtue, or the liberty of action essential to the proper exercise of the elective franchise. But the rule by which the presence or absence of these qualifications is to be determined, it is not easy to establish on grounds the reason and propriety of which shall be accepted by all. It must be one that is definite and easy of application, and 1 " The people,, for political purposes, ' Some reference is made to the rea- must be considered as synonymous with sons for the exclusion in the opinions in qualifled voters." Blair v. Bidgely, 41 Bradwell v. State, 16 Wall. 130, and Mo. 63. Minor v. Happersett, 21 Wall. 162, CH. in.] FOKMA.TION AND AMENDMENT OF CONSTITUTIONS. 41 it must be made permanent, or an accidental majority may at any time change it, so as to usurp all power to themselves. But to be definite and easy of application, it must also be arbitrary. The infant of tender years is wanting in competency, but he is daily acquiring it, and a period is fixed at which he shall conclusively be presumed to possess what is requisite. The alien may know nothing of our political system and laws, and he is excluded until he has been domiciled in the country for a period judged to be sufficiently long to make him familiar with its institutions ; races are sometimes excluded arbitrarily ; and at times in some of the States the possession of a certain amount of property, or the ca^ pacity to read, seems to have been regarded as essential to satis- factory proof of sufficient freedom of action and intelligence.^ Whatever rule is once established must remain fixed until those who by means of it have the power of the State put into their hands see fit to invite others to participate with them in its exercise. Any attempt of the excluded classes to assert their right to a share in the government, otherwise than by operating upon the public opinion of those who possess the right of suffrage, would be regarded as an attempt at revolution, to be put down by the strong arm of the government of the State, assisted, if need be, by the military power of the Union.^ In regard to the formation and amendment of State constitu- tions, the following appear to be settled principles of American constitutional law : — I. The people of the several Territories may form for them- selves State constitutions whenever enabling acts for that purpose are passed by Congress, but only in the manner allowed by such enabling acts, and through the action of such persons as the en- abling acts shall clothe with the elective franchise to that end. If the people of a Territory shall, of their own motion, without such enabling act, meet in convention, frame and adopt a consti- tution, and demand admission to the Union under it, such action does not entitle them, as matter of right, to be recognized as a 1 State V. Woodruff, 2 Day, 504 ; Cat- 504. Many special statutes, referring to lin V. Smitli, 2 S. & K. 267 ; Opinions the people of a municipality the question of Judges, 18 Pick. 575. See Mr. Ban- of voting aid to internal improvements, croft's synopsis of the first constitu- have confined the right of voting on the tions of the original States, in his question to taxpayers. History of the American Revolution, ^ xhe case of Rhode Island and the 0. 5. For some local elections it is " Dorr Rebellion," so popularly known, quite common still to require prop- will be fresh in the minds of all. For erty qualification or the payment of a discussion of some of the legal as- taxes in the voter; but statutes of this pects of the case, see Luther u. Borden, description are generally construed liber- 7 How. 1. ally. See Crawford v. Wilson, 4 Barb. 42 CONSTITUTIONAL LIMITATIONS. [OH. III. State; but the power that can admit can also refuse, and the territorial status must be continued until Congress shall be satis- fied to suffer the Territory to become a State. There are always in these cases questions of policy as well as of constitutional law to be determined by the Congress before admission becomes a matter of right, — whether the constitution formed is republican ; whether suitable and proper State boundaries have been fixed upon ; whether the population is sufficient ; whether the proper qualifications for the exercise of the elective franchise have been agreed to ; whether any inveterate evil exists in the Territory which is now subject to control, but which might be perpetuated under a State government, — these and the like questions, in which the whole country is interested, cannot be finally solved by the people of the Territory for themselves, but the final deci- sion must rest with Congress, and the judgment must be favorable before admission can be claimed or expected.-^ II. In the original States, and all others subsequently admitted to the Union, the power to amend or revise their constitutions resides in the great body of the people as an organized body poli- tic, who, being vested with ultimate sovereignty, and the source of all State authority, have power to control and alter at will the law which they have made. But the people, in the legal sense, must be understood to be those who, by the existing constitution, are clothed with political rights, and who, while that instrument remains, will be the sole organs through which the will of the body politic can be expressed.^ III. But the will of the people to this end can only be ex- pressed in the legitimate modes by which such a body politic tan act, and which must either be prescribed by the constitution whose revision or amendment is sought, or by an act of the legis- lative department of the State, which alone would be author- ized to speak for the people upon this subjegt, and to point out a mode for the expression of their will in the absence of any pro- vision for amendment or revision contained in the constitution itself.3 1 When a constitution has been constitution, and binding as such, al- adopted by the people of a Territory, though not submitted to the people for preparatory to admission as a State, and approval. Brittle v. People, 2 Neb. 198 ; Congress prescribes certain changes and Secombe v. Eittleson, 29 Minn. 555. additions to be adopted by the legisla- 2 Luther v. Borden, 7 How. 1 ; Wells ture as part of the constitution, and v. Bain, 75 Penn. St. 89. declares such changes and additions to be ' Opinions of Judges, 6 Cush. 573. The fundamental conditions of admission of first constitution of New York contained the State, and the legislature accepts no provision for its own amendment, and such changes and additions, and it is ad- Mr. Hammond, in his Political History of mitted, the changes become a part of the New York, Vol. I. c. 26, gives a very CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 43 IV. In accordance with univei'sal practice, and from the very necessity of the case, amendments to an existing constitution, or entire revisions of it, must be prepared and matured by some body of representatives chosen for the purpose. It is obviously impossible for the whole people to meet, prepare, and discuss the proposed alterations, and there seems to be no feasible mode by which au expression of their will can be obtained, except by ask- ing it upon the single poiut of assent or disapproval. But no interesting account of the controversy before the legislature and in the council of revision as to the power of the legisla- tMTe to call a convention for revision, and as to the mode of submitting its work to the people. In Collier v. Frierson, 24 Ala. 100, it appeared that the legislature had proposed eight different amendments to be submitted to the people at the same time; the people had approved them, and all the requisite proceedings to malce them a part of the constitution had been had, except that in the subsequent legislature the resolution for their ratifi- cation had, by mistake, omitted to recite one of them. On the question whether this one had been adopted, we quote from the opinion of the court : " The-constitu- tion can be amended in but two ways: either by the people who originally framed it, or in the mode prescribed by the instrument itself. ... We entertain no doubt that to change the constitution in any other mode than by a convention, every requisition which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment. We scarcely deem any argument necessary to enforce this prop- osition. The constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It has been said that certain acts are to be done, certain re- quisitions are to be observed, before a change can be effected. But to what purpose are those acts required or those requisitions enjoined, if the legislature or any department of the government can dispense with them ? To do so would be to violate the instrument which they are sworn to support, and every principle of public law and sound constitutional pol- icy requires the courts to pronounce against any amendment which is not shown to have been made in accordance witli the rules prescribed by the funda- mental law." See also State w. McBride, 4 Mo. 303 ; State v. Tufly, 19 Nev. 391 ; In re Const. Convention, 14 R. I. 649 ; Koehler v. Hill, 60 la. 643. In the last case it is held that where a proposed amendment must be entered at length upon the journal, neither the enrolled resolu- tion embodying it nor parol evidence can be received to contradict the journal; nor are the courts debarred from as- certaining the truth by the fact that a second general assembly passed the amendment as enrolled. But if the proposition is recorded in the Senate journal and amended in the House and the amendment is then recorded in the Senate, it is not a valid objection that the whole proposition is not recorded in one place in the Senate journal. In re Senate File, 41 N. W. Rep. 981 (Neb.) It is enough if the journal entry is by refer- ence to the title. Thomason v. Buggies, 69 Cal. 465. Where the constitution provided that amendments should be proposed by one general assembly, aad approved and submitted to popular vote by a second, and seventeen amendments were thus approved together, and the second general assembly passed upon and submitted eight by one bill and nine by another, the submission was Jield suffi- cient qnd valid. Trustees of University V. Mclver, 72 N. C. 76. Several prop- ositions which in effect are but one amendment may be submitted to the peo- ple as one amendment. State v. Timme, 54 Wis. 318. A higli license amend- ment and a prohibitory amendment may be submitted at one time. In re Senate File, supra. An amendment becomes effective when tlie votes are canvassed. The Governor need not make a procla- mation. Sewell u. State, 15 Tex. App. 56 ; Wilson v. State, id. 150. 44 CONSTITUTIONAL LIMITATIONS. [CH. III. body of representatives, unless specially clothed with power for that purpose by the people when choosing them, can rightfully take definitive action upon amendments or revisions ; they must submit the result of their deliberations to the people — who alone are competent to exercise the powers of sovereignty in framing the fundamental law — for ratification or rejection. The consti- tutional convention is the representative of sovereignty only in a very qualified sense, and for the specific purpose, and with the restricted authority to put in proper form the questions of amend- ment upon which the people are to pass ; but the changes in the fundamental law of the State must be enacted by the people themselves.^ V. The power of the people to amend or revise their constitu- tions is limited by the Constitution of the United States in the following particulars : — 1. It must not abolish the republican form of government, since such act would be revolutionary in its character, and would call for and demand direct intervention on the part of the government of the United States.^ 2. It must not provide for titles of nobility, or assume to violate the obligation of any contract, or attaint persons of crime, or pro- vide ex post facto for the punishment of acts by the courts which were innocent when committed, or contain any other provision which would, in effect, amount to the exercise of any power ex- pressly or impliedly prohibited to the States by the Constitution of the Union. For while such provisions would not call for the direct and forcible intervention of the government of the Union, it would be the duty of the courts, both State and national, to refuse to enforce them, and to declare them altogether void, as ^ See, upon this subject, Jameson on son, 6 W. Va. 613, 708. The Supreme the Constitutional Convention, §§ 415-418, Court of Missouri have expressed the and 470-520. This worli is so complete opinion that it was competent for a con- and satisfactory in its treatment of the vention to put a new constitution in general subject as to leave little to be force without submitting it to the people, said by one who shall afterwards attempt State v. Neal, 42 Mo. 119. But this was to cover the same ground. Where a oUler. Where proposed amendments are convention to frame amendments to the required to be submitted to the people, constitution is sitting under a legislative and approved by a majority vote, it is a act from which all its authority is de- mooted question whether a majority of rived, the submission of its labors to a those voting thereon is sufficient, when it vote of the people in a manner different appears that they do not constitute a from that prescribed by the act is nuga- majority of' all who voted at the same tory. Wells v. Bain, 75 Penn. St. 39. election. See State i: Swift, 69 Ind. 505 ; Such a convention has no inherent rights ; and cases cited, post, 747, 748. it has delegated powers only, and must ^ Const, of U. S. art. 4, § 4 ; Federal- keep within them. Woods's Appeal, 75 ist, No. 43. Penn. St. 59. Compare Loomis i>. Jack- CH. III.] FOEMATION AND AMENDMENT OF CONSTITUTIONS. 45 much when enacted by the people in their primary capacity as makers of the fundamental law, as when enacted in the form of statutes through thd delegated power of their legislatures.^ VI. Subject to the foregoing principles and limitations, each State must judge for itself what provisions shall be inserted in its constitution ; how the powers of government shall be apportioned in order to their proper exercise ; what protection shall be thrown around the person or property of the citizen ; and to what extent private rights shall be required to yield to the general good.2 And the courts of the State, still more the courts of the Union, would be, precluded from inquiring into the justice of their action, or questioning its validity, because of any supposed conflict with fundamental rules of right or of government, unless they should be able to show collision at some point between the instrument thus formed and that paramount law which constitutes, in regard to the subjects it covers, the fundamental rule of action through- out the whole United States.^ 1 Cummings v. Missouri, 4 Wall. 277 ; Jefferson Branch Bank v. Skelly, 1 Blauk, 43&; State «. Keitli, 63 N. C. 140; Jac- oway V. Denton, 25 Ark. 526 ; Union Bank v. State, 9 Yerg. 490 ; Girdner v. Stephens, 1 Heisk. 280 ; Lawson u. Jef- fries, 47 Miss. 686 ; s. c. 12 Am. Rep. 342; Penn v. Tollison, 26 Ark. 545; Dodge V. Woolsey, 18 How. 331 ; Pacific E. R. Co. V. Maguire, 20 Wall. 36 ; Rail- road Co. V. McClure, 10 Wall. 511 ; White V. Hart, 13 Wall. 646 ; New Orleans Gas Co. V. Louisiana Light Co., 115 U.S. 650; Fisk V. Jefferson Police Jury, 116 U. S. 131. The fact that the constitution con- taining the obnoxious provision was sub- mitted to Congress, and the State admitted to full rights in the Union under it, can- not make such provision valid. Gunij v. Barry, 15 Wall. 610. 2 Matter of the Reciprocity Bank, 22 N. y. 9 ; McMuUen v. Hodge, 5 Texas, 34 i Penn v. Tollison, 26 Ark. 545 ; Mat- ter of Oliver Lee & Co.'s Bank, 21 N. Y. 9. In the case last cited, Denio, J., says : " The [constitutional] convention was not obliged, like the legislative bodies, to look carefully to the preservation of vested rights. It was competent to deal, subject to ratification by the people and to the Constitution of the federal government, with all private and social rights, and with all the existing laws and institutions of the State. If the convention had so willed, and the people had concurred, all former charters and grants might have been annihilated. When, therefore, we are seeking for the true construction of a constitutional provision,we are constantly to bear in mind that its authors were not executing a delegated authority, limited by other constitutional restraints, but are to look upon them as the founders of a State, intent only upon establishing such principles as seemed best calculated to produce good government and promote the public happiness, at the expense of any and all existing institutions which might stand in their way." ° All the State constitutions now con- tain within themselves provisions for their amendment. Some require the question of calling a convention to re- vise the constitution to be submitted to the people at stated periods ; others leave it to the legislature to call a con- vention, or to submit to the people the question of calling one ; while the major part allow the legislature to mature spe- cific amendments to be submitted to the people separately, and these become a part of the constitution if adopted by the requisite vote. When the late rebellion had been put down by the military forces of the United States, and the State governments which constituted a part of the disloyal system had been displaced, serious questions 46 CONSTITUTIONAL LIMITATIONS. [GH. III. How far the constitution of a State shall descend into the par- ticulars of government, is a question of policy addressed to the convention which forms it. Certain things are to be looked for in all these instruments ; though even as to these there is great vai'iety, not only of substance, but also in the minuteness of their provisions to meet particular cases. I. We are to expect a general framework of government to be designed, under which the sovereignty of the people is to be exer- cised by representatives chosen for the purpose, in such manner as the instrument provides, and with such reservations as it makes. II. Generally the qualifications for the right of suffrage will be declared, as well as the conditions under which it shall be exercised. III. The usual checks and balances of republican government, in which consists its chief excellence, will be retained. The most important of these are the separate departments for the exercise of legislative, executive, and judicial power ; and these are to be kept as distinct and separate as possible, except in so far as the ac- tion of one is made to constitute a restraint upon the action of the others, to keep them within proper bounds, and to prevent hasty and improvident action. Upon legislative action there is, first, the check of the executive, who will generally be clothed with a qualified veto power, and who may refuse to execute laws deemed unconstitutional; and, second, the check of the judiciairy, who may annul unconstitutional laws, and punish those concerned in were raised as to the proper steps to be When a, constitution has been re- taken in order to restore the States to garded by the people of a State as valid, their harmonious relations to the Union, and it has never been adjudged illegal These questions, and the controversy by the courts, a federal circuit court will over them, constituted an important part not question its legal adoption. Smith of the history of our country during the v. Good, 34 Fed. Bep. 204. administration of President Johnson ; but It has been decided in some cases that as it is the hope and trust of our people a constitution is to have effect from the that the occasion for discussing such time of its adoption by the people, and questions will never arise again, we do not from the time of the admission of the not occupy space with them in this work. State into the Union by Congress. Scott It siiffices for the present to say, that v. Young Men's Society's Lessee, 1 Doug. Congress claimed, insisted upon, and eri- (Mich.) 119 ; Campbell v. Fields, 85 Texas, forced the right to prescribe the steps to 751. The Texas reconstruction consti- be taken and the conditions to be ob- tution became operative before the State served in order to restore these States to was admitted to representation in Con- thelr former positions in the Union, and gress. Peak t>. Swindle, 68 Texas, 242. the right also to determine when the pre- An amendment to the Minnesota orlgl- scribed conditions had been complied nal constitution adopted before formal with, so as to entitle them to representa- admission of the State Is valid. Any ir- tion in Congress. There is some discus- regularity is healed by the admission, and sion of the general subject in Texas v. the subsequent recognition of the validity White, 7 Wall. 700. And see Gunn v. of the amendment by the State. Secombe Barry, 15 Wall. 610. v. Kittelson, 29 Minn. 555. CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. "f? enforcing them. Upon judicial action there is the legislative check, which consists in the power to prescribe rules for the courts, and perhaps to restrict their authority ; and the execu- tive check, of refusing aid in enforcing any judgments which are believed to be in excess of jurisdiction. Upon executive action the legislature has a power of restraint, corresponding to that which it exercises upon judicial action ; and the judiciary may punish executive agents for any action in excess of executive authority. And the legislative department has an important restraint upon botli the executive and the judiciary, in the power of impeach- ment for illegal or oppressive action, or for any failure to perform official duty. The executive, in refusing to execute a legislative enactment, will always do so with the peril of impeachment in view. IV. Local self-government having always been a part of the English and American systems, we shall look for its recognition in any such instrument. And even if not expressly recognized, it is still to be understood that all these instruments are framed with its present existence and anticipated continuance in view.^ v. We shall also expect a declaration of rights for the pro- tection of individuals .and minorities. This declaration usually contains the following classes of provisions : — 1. Those declaratory of the general principles of republican government ; such as, that all freemen, when they form a social compact, are equal, and no man, or set of men, is entitled to ex- clusive, separate public emoluments or privileges from the com- munity but in consideration of public services ; that absolute, arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority ; that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, happiness, security, and the protection of property ; that for the advancement of these ends they have at all times an in- alienable and indefeasible right to alter, reform, or abolish their government in such manner as they may think proper ; that all elections shall be free and equal ; that no power of suspending the laws shall be exercised except by the legislature or its author- ity ; that standing armies are not to be maintained in time of peace ; that representation shall be in proportion to population ; that the people shall have the right freely to assemble to consult of the common good, to instruct their representatives, and petition for redress of grievances ; and the like. 1 Park Commissioners v. Common Council of Detroit, 28 Mich. 228 ; People v. Albertson, 55 N. Y. 50. 48 CONSTITUTIONAL LIMITATIONS. [CH. III. 2. Those declaratory of the fundamental rights of the citizen : as that all men are by nature free and independent, and have cer- tain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness ; that the right to property is before and higher than any constitutional sanction ; that the free exercise and enjoyment of religious pro- fession and worship, without discrimination or preference, shall forever be allowed ; ^ that every man may freely speak, writ^, and publish his sentiments on all subjects, being responsible for the abuse of that right ; that every man may bear arms for the de- fence of himself and of the State ; that the right of the people to be secure in their persons, houses, papers, and effects against un- reasonable searches and seizures shall not be violated, nor shall soldiers be quartered upon citizens in time of peace ; and the like. 3. Those declaratory of the principles which ensure to the citizen an impartial trial, and protect him in his life, liberty, and property against the arbitrary action of those in authority : as that no bill of attainder or ex post facto law shall be passed ; that the right to trial by jury shall be preserved ; that excessive bail shall not be required, nor excessive punishments inflicted ; that no person shall be subject to be twice put in jeopardy for the same offence, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law ; that private property shall not be taken for public use without compensation ; and the like. Other clauses are sometimes added declaratory of the prin- ciples of morality and virtue ; and it is also sometimes expressly declared — what indeed is implied without the declaration — that everything in the declaration of rights contained is excepted out of the general powers of government, and all laws contrary thereto shall be void. Many other things are commonly found in these charters of government ; ^ but since, while they continue in force, they are to remain absolute and unchangeable rules of action and decision, 1 Hale V. Everett, 53 N. H. 9 ; Board to provide for the choice of these agents of Education w. Minor, 23 Ohio St 211. by the people; to ascertain, limit, and 2 " This, then, is the ofiSce of a written define the extent of the authority thus [free] constitution : to delegate to various delegated ; and to reserve to the people public functionaries such of the powers of their sovereignty over all things not ex- government as the people do not intend pressly committed to their representa- to exercise for themselves ; to classify tives." E. P. Hurlbut in Human Bights these powers, according to their nature, and their Political Guaranties. and to commit them to separate agents ; CH. III.] FOEMATION AND AMENDMENT OF CONSTITtJTIONS. 49 it is obyioue that they should not be made to embrace within their iron grasp those subjects in regard to which the policy or interest of the State or of its people may vary from, time to time, and which are therefore more properly left to the control of the legis- lature, which can more easily and speedily make the required changes. In considering State constitutions we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the rights of the gov- erned. " What is a constitution, and what are its objects ? It is easier to tell what it is not than what it is. It is not the beginning of a community, nor the origin of private rights ; it is not the fountain of law, nor the incipient state of government ; it is not the cause, but consequence, of personal and political free- dom ; it grants no rights to the people, but is the creature of their power, the instrument of their convenience. Designed for their protection in the enjoyment of the rights and powers which they possessed before the constitution was made, it is but th^ framework of the political government, and necessarily based upon the pre-existing condition of laws, rights, habits, and modes of thought. There is nothing primitive in it : it is all derived from a known source. It presupposes an organized society, law, order, property, personal freedom, a love of political liberty, and enough of cultivated intelligence to know how to guard it against the encroachments of tyranny. A written constitution is in every instance a limitation upon the powers of government in the" hands of agents ; for there never was a written republican con- stitution which delegated to functionaries all the latent powers which lie dormant in every nation, and are boundless in extent and incapable of definition." ^ ' 1 Hamilton v. St. Louis Cqunty Court, have sprung from the habits of life, modes 15 Mo. 13, per Bates, arguendo. And see of thought, methods of trying facts by Matter of Oliver Lee & Co.'s Bank, 21 the neighborhood, and mutual responsi- N. Y. 9; Lee v. State, 26 Ark. 265-6.' bility in neighborhood interests; the pre- " Written constitutions sanctify and con- cepts that have come to us from the revo- flrm great principles, but the> latter are lutions which ovqj* turned tyrannies ; the prior in existence to the former." 2 Web- sentiments of manly independence and Bter's Works, 392. See also 1 Bl. Com. self-control which impelled our ancestors 124 ; 2 Story, Life and Letters, 278; Sid- to summon the local community to redress ney on Government, c. 3, sees. 27 and 33. local evils, instead of relying upon king "If this charter of State government or legislature at a distance to do so, — if which we call a constitution were all there a recognition of all these were to be was of constitutional command ; if the stricken from the body of our constitu- usages, the customs,, the maxims that tional law, a lifeless skeleton might re- 4 50 CONSTITUTIONAL LIMITATIONS. "6*1*" [CH. in. main, but the living spirit; that which gives it force and attraction, which makes it Valuable and draws to it the affections of the people; that which distinguishes it from the numberless constitutions, so called, which in Europe have been set up and thrown down within the last hundred years, many of which, in their expres- sions, seemed equally fair and to possess equal promise with ours, and have only been wanting in the support and vitality which these alone can give, — this living and breathing spirit which supplies the interpretation of the words of the written charter would be utterly lost and gone." People V. Hurlbut, 21 Mich. 44, 107. CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 51 CHAPTER IV. OP THE C0N8TEUCTI0N OP STATE CONSTITUTIONS. The deficiencies of human language are such that, if written instruments were always prepared carefully by persons skilled in the use of words, we should still expect to find their meaning often drawn in question, or at least to meet with difficulties in their practical application. But when draughtsmen are careless or incompetent, these difficulties are greatly increased ; and they multiply rapidly when the instruments are to be applied, not only to the subjects directly within the contemplation of those who framed them, but also to a great variety of new circumstances which could not have been anticipated, but which must never- theless be governed by the general rules which the instruments establish. Moreover, the different points of view from which dif- ferent individuals regard these instruments incline them to differ- ent views of the instruments themselves. All these circumstances tend to give to the subjects of interpretation and construction great prominence in the practical administration of the law, and to suggest questions which often are of no little difficulty. Interpretation differs from construction in that the former is the art of finding out the true sense of any form of words ; that is, the sense which their author intended to convey ; and of enabling others to derive from them the same idea which the author intended to convey. Construction, on the other hand, is the drawing of conclusions, respecting subjects that lie beyond the direct expressions of the text, from elements known from and given in the text ; conclusions which are in the spirit, though not within the letter of the text. Interpretation only takes place if the text conveys some meaning or other. But construction is resorted to when, in comparing two different writings of the same indi- vidual, or two different enactments by the same legislative body, there is found contradiction where there was evidently no inten- tion of such contradiction one of another, or where it happens that part of a writing or declaration contradicts the rest. When this is the case, and the nature of the document or declaration, or whatever else it may be, is such as not to allow us to consider the whole as being invalidated by a partial or other contradiction, 52 CONSTITUTIONAL LIMITATIONS. _, [CH. IV. then resort must be had to construction ; so, too, if required to act in cases which have not been foreseen by the framers of those rules, by which we are nevertheless obliged, for some binding reason, faithfully to regulate as well as we can our action respect- ing the unforeseen case.^ In common use, however, the word construction is generally employed in the law in a sense embra- cing all that is properly covered by both when each is used in a sense strictly and technically correct ; and we shall so employ it in the present chapter. From the earliest periods in the history of written law, rules of construction, sometimes based upon sound reason, and seeking the real intent of the instrument, and at other times altogether arbitrary or fa,nciful, have been laid-, down by those who have assumed to instruct in the law, or who, have been called upon to administer it, by the aid of which the meaning of the instrument was to be resolved. Some of these rules have been applied to particular classes of instruments only ; others are more general in their application, and, so far as they are sound, may bo made use of in any case where the meaning of a writing is in dispute. To such of these as seem important in constitutional law we shall refer, and illustrate them by references to reported cases, in which they have been applied. A few preliminary words may not be out of place, upon the questions, who are to apply these rules ; what person, body, or department is to enforce the construction ; and how far a deter- mination, when once made, is to be binding upon other persons, bodies, or departments. We have already seen that we are to expect in every constitu- tion an apportionment of the powers of government. We shall also find certain duties imposed upon the several departments, as well as upon specified officers in each, and we shall likewise dis- cover that the constitution has sought to hedge about their action in various ways, with a view to the protection of individual rights, and the proper separation of duties. And wherever any one is called upon to perform any constitutional duty, or to do any act in respect to which it can be supposed that the constitu- tion has spoken, it is obvious that a question of construction may at once arise, upon which some one must decide before the duty is performed or the act done. From the very nature of the case, 1 Lieber, Legal and Political Hermen- convey ideas." " Cotistruotion, In practice, eutlcs. See Smith on Stat, and Const, determining the meaning and application Construction, 600. Bouvier defines the as to the case in question of the provi- two ■ terms succinctly as follows : " Inter- sions of a constitution, statute, will, or preiaiion, the discovery and representation other instrument, or of an oral agree- of the true meaning of any signs used to ment." Law Diet. CH. rv.] CONSTETJCTION OF STATE CONSTITUTIONS. 53 this decision must commonly be made by the person, body, or department upon whom the duty is imposed, or from whom the act is required. Let us suppose that the constitution requires of the legislature, that, in establishing municipal corporations, it shall restrict their powers of taxation ; and a city charter is proposed which confines the right of taxation to the raising of money for certain specified purposes, but in regard to those purposes leaves it unlimited ; or which allows to the municipality unlimited choice of purposes, but restricts the rate ; or which permits persons to be taxed indefi- nitely, but limits the taxation of property : in either of these cases the question at once arises, whether the limitation in the charter is such a restriction as the constitution intends. Let us suppose, again, that a board of supervisors is, by the Constitution, authorized to borrow money upon the credit of the county for any county purpose, and that it is asked to issue bonds in order to purchase stock in some railway company which proposes to construct a road across the county ; and the proposition is met with the query. Is this a county purpose, and can the issue of bonds be regarded as a borrowing of money, within the meaning of the people as expressed in. the constitution ? And once again : let us suppose that the governor is empowered to convene the le- gislature on extraordinary occasions, and he is requested to do so in order to provide for a class of private claims whose holders are urgent ; can this with any propriety be deemed an extraordinary occasion ? In these and the like cases our constitutions have provided no tribunal for the specific duty of solving in advance the questions which arise. In a few of the States, indeed, the legislative de- partment has been empowered by the constitution to call upon the courts for their opinion upon the constitutional validity of a proposed law, in order that, if it be adjudged without warrant, the legislature may abstain 'from enacting it.^ But those pro- ' By the constitutions of Maine, New amend. Opinion of Justices, 21 N. E. Hampshire, and Massachusetts, tlie judges Rep. 439. In Florida the governor may of the Supreme Court are required, when require an opinion on any question affect- called upon by the governor, council, or ing his executive powers and duties. A either house of the legislature, to give duty with reference to a bill before it be- their opinions " upon important questions comes a law, is not an executive duty, of law, and upon solemn occasions." In and as to it the judges cannot advise. Bhode Island the governor or either house Opinion of Justices, 23 Fla. 297. In Mis- of the general assembly may call for the souri, previous to the constitution of 1875, opinions of the judges of the Supreme the judges were required to give their Court upon any question of law. In opinions "upon important questions of Massachusetts the justices will not give constitutional law, and upon solemn oe- an opinion on the proper construction of casions;" and the Supreme Court held an existing act which the legislature may that while the governor determined for 54 CONSTITUTIONAL LIMITATIONS. [CH. IV. visions are not often to be met with, and judicial decisions, espe- cially upon delicate and difficult questions of constitutional law, can seldom be entirely satisfactory when made, as they commonly will be under such calls, without the benefit of argument at the bar, and of that light upon the questions involved which might be afforded by counsel learned in the law, and interested in giving them a thorough investigation. It follows, therefore, that every department of the government and every official of every department may at any time, when a duty is to be performed, be required to pass upon a question of constitutional construction.^ Sometimes the case will be such that the decision when made must, from the nature of things, be conclusive and subject to no appeal or review, however erroneous it may be in the opinion of other departments or other officers ; but in other cases the same question may be required to be passed upon again before the duty is completely performed. The first of these classes is where, by the constitution, a particular ques- tion is plainly addressed to the discretion or judgment of some one department or oflBcer, so that the interference of any other department or officer, with a view to the substitution of its own himself, whether the occasion was such as to authorize him to call on the judges for their opinioR, they must decide for themselves whether the occasion was such as to warrant the governor in making the call. Opinions of Judges, 49 Mo. 216-. By a constitutional amendment of 1885, the Colorado Supreme Court is required to give its opinion upon important questions upon solemn occasions to tlfe governor or either house of the legislature. The intention, it is held, is not " to authorize an ex parte adjudication of individual or corporate rights," nor to exact " a whole- sale exposition of all constitutional ques- tions relating to a given subject, in antici- pation of the possible introduction or passage of measures bearing upon par- ticular branches of such subject." It appearing that the question was covered by pending litigation, the court refused to answer. In re Irrigation Besolution, 9 Col. 620. Nor should it give an opinion on provisions which do not affect a pend- ing act. In re Senate Kesolution, 21 Pac. Rep. 470. Questions must affect purely public rights. In re Senate Besolution, id. 478. In Vermont, by statute the governor may require an opinion on questions con- nected with the discharge of his duties ; and in Kentucky an opinion has been given without requirement of law on the power of the governor to fill a vacancy on the Supreme Bench. Opinion of Judges, 79 Ky. 621. 1 "It is argued that the legislature cannot give a construction to the consti- tution relative to private rights secured by it. It is true that the legislature, in consequence of their construction of the constitution, cannot make laws repugnant to it. But every department of govern- ment, invested with certain constitutional powers, must, in the first instance, but not exclusively, be the judge of its pow- ers, or it could not act." Parsons, Ch. J., in Kendall v. Inhabitants of Kingston, 5 Mass. 624, 533. The decision of a gov- ernor, having jurisdiction to decide in the first instance whether tax exemption is constitutional, must be obeyed by in- ferior executive officers. State u. Bu- chanan, 24 W. Va. 362. But a patent commissioner may not refuse to perform a ministerial act on the ground that the statute requiring it is unconstitutional. United States v. Marble, 3 Mackey, 32. Notwithstanding a void proviso as to an officer's salary, it is his duty to give the act effect. State v. Kelsey, 44 N. J. L. 1. CH. IV.] CONSTEUCTION OF STATE CONSTITUTIONS. 55 discretion or judgment in the place of that to which the constitu- tion has confided the decision, would be impertinent and intru- sive. Under every constitution, cases of this description are to be met with ; and, though it will sometimes be found difficult to classify them, there can be no doubt, when the case is properly determined to be one of this character, that the rule must prevail which makes the decision final. "We will suppose, again, that the constitution empowers the executive to convene the legislature on extraordinary occasions, and does not in terms authorize the intervention of any one else in determining what is and what is not such an occasion in the, constitutional sense ; it is obvious that the question is addressed exclusively to the executive judgment, and neither the legislative nor the judicial department can intervene to compel action, if the executive decide against it, or to enjoin action if, in his opinion, the proper occasion has arisen.^ And again, if, by the constitu- tion, laws are to take effect at a specified time after theij? passage, unless the legislature for urgent reasons shall otherwise order, we must perceive at once that the legislature alone is competent to pass upon the m-gency of the alleged reasons.^ And to take a 1 Whiteman v. Bailroad Co., 2 Harr. (Del.) 514 J B. c. 33 Am. Dec. 411 ; In re State Census, 21 Pac. Rep. 477 (Col.). In exercising his power to call out the militia in certain exigencies, the Presi- dent is the exclusive and final judge when the exigency has arisen. Martin v. Mott, 12 Wheat. 19. In People v. Parker, 3 Neb. 409, s. c. 19 Am. Bep. 634, it ap- peared that an ofScer, assuming to act as governor in the absence of the governor from the State, had issued a proclamation convening the legislature in extraordinary session. The governor returned previous to the time named for the meeting, and issued a second proclamation, revoking the first. Held, that the power of con- vening the legislature being a discretion- ary power, it might be recalled before the meeting took place. It is undoubted that, when a case is within the legislative discretion, the courts cannot interfere with its exercise. State V. Hitchcock, 1 Kan. 178; State v. Boone County Court, 50 Mo. 317 ; Patterson v. Barlow, 60 Penn. St. 54, and see cases post, 152. The statement of legislative rea- sons in the preamble of an act will not affect its validitiy. Lotbrop v. Steadman, 42 Conn. 583. 2 See post, p. 189. In Gillinwater v. Mississippi & Atlantic Bailroad Co., 13 111. 1, it was urged that a certain restric- tion imposed upon railroad corporations by the general railroad law was a viola- tion of the provision of the constitution which enjoins it upon the legislature " to encourage internal improvements by pass- ing liberal general laws of incorporation for that purpose." The court say of this provision : " This is a constitutional com- mand to the legislature, as obligatory on it as any other of the provisions of that instrument ; but it is one which cannot be enforced by the courts of justice. It addresses itself to the legislature alone, and it is not for us to say whether it has obeyed the behest in its true spirit. Whether the provisions of this law are liberal, and tend to encourage internal improvements, is matter of opinion, about which men may differ ; and as we have no authority to revise legislative action on the subject, it would not become us to express our views in relation to it. The law makes no provision for the construc- tion of canals and turnpike roads, and yet they are as much internal improvements as railroads, and we might as well be asked to extend what we might consider 56 CONSTITtTTIONAL LIMITATIONS. [CH. IV. judicial instance : If a court ia required to give an accused person a trial at the first term after indictment, unless good cause be shown for continuance, it is obvious that the question of good cause is one for the court alone to pass upon, and that its judg- ment when exercised is, and must be from the nature of the case, final. And when in these or any similar case the decision is once made, other departments or other officers, whatever may have been their own opinions, must assume the decision to be correct, and are not at liberty to raise any question concerning it, unless some duty is devolved upon them which presents the same ques- tion anew. But there are cases in which the question of construction is equally addressed to two or more departments of the government, and it then becomes important to know whether the decision by one is binding upon the others, or whether each is to act upon its own judgment. Let us suppose once more that the governor, being empowered by the constitution to convene the legislature upon extraordinary occasions, has regarded a particular event as being such an occasion, and has issued his proclamation calling them together with a view to the enactment of some particular legislation which the event seems to call for, and which he speci- fies in his proclamation. Now, the legislature are to enact laws upon their own view of necessity and expediency ; and they will refuse to pass the desired statute if they regard it as unwise or unimportant. But in so doing they indirectly review the gov- ernor's decision, especially if, in refusing to pass the law, they do so on the ground that the specific event was not one calling for action on their part. In such a case it is clear that, while the decision of the governor is final so far as to require the legislature to meet, it is not final in any sense that would bind the legisla- tive department to accept and act upon it when they enter upon the performance of their duty in the making of laws.^ So also there are cases where, after the two houses of the legis- lature have passed upon the question, their decision is in a certain sense subject to review by the governor. If a bill is introduced the constitutionality of which is disputed, the passage of the bill the liberal provisions of this law to them, gislative jurisdiction, it is for the courts to because they are embraced in tlie consti- say what the law is, not what it should tutional provision, as to ask us to disre- be." It is clear that courts cannot inter- gard such prbvisions of it as we might fere with matters of legislative discretion, regard as illiberal. The argument pro- Maloy v. Marietta, 11 Ohio St. 636. As ceeds upon the idea that we should con- to self-ezecUting provisions in general, see aider that as done which ought to be done ; post, p. 98. but that principle has no application here. i See Opinions of Judges, 49 Mo. 216. Like laws upon other subjects within le- CH. IV.] CONSTKUCTION OF STATE CONSTITUTIONS. 57 by the two houses must be regarded as the expression of their judgment that, if approved, it will be a valid law. But if the constitution confers upon the governor a veto power, the same question of constitutional authority will be brought by the bill before him, since it is manifestly his duty to withhold approval from any bill which, in his opinion, the legislature ought not for any reason to pass. And what reason so forcible as that the constitution confers upon them no authority to enact it ? In all these and the like cases, each department must act upon its own judgment, and cannot be required to do that which it regards as a violation of the constitution, on the ground solely that another department which, in the course of the discharge of its own duty, was called upon first to act, has reached the conclusion that it will not be violated by the proposed action. But setting aside now those cases to which we have referred, where from the nature of things, and perhaps from explicit terms of the constitution, the judgment of the department or officer acting must be final, we shall find the general rule to be, that whenever action is taken which may become the sub- ject of a suit or proceeding in court, any question of constitu- tional power or right that was involved in such action will be open for consideration in such suit or proceeding, and that as the courts must finally settle the particular controversy, so also will they finally determine the question of constitutional ,law. For the constitution of the State is higher in authority than any law, direction, or order made by any body or any officer assuming to act under it, since such body or officer must exercise a dele- gated authority, and one that must necessarily be subservient to the instrument by which the delegation is made. In any case of conflict the fundamental law must govern, and the act in conflict with it must be treated as of no legal validity. But no mode has yet been devised by which these questions of conflict are to be discussed and settled as alJstract questions, and their determi- nation is necessary or practicable only when public or privafe rights would be affected thereby. They then become the subject of legal controversy ; and legal controversies must be settled by the courts.! xhe courts have thus devolved upon them the duty to pass upon the constitutional validity, sometimes of legis- lative, and sometimes of executive acts. And as judicial tribu- nals have authority,' not only to judge, but also to enforce their 1 Governor v. Porter, 5 Humph. 165. Mich. 265; Powell o. State, 17 Tex. App. The legislature cannot by statute define 345. Compare People v. Supervisors of the words of the constitution for tlie La Salle, 100 111. 496. And see ;)ost, 112, courts. Westinghausen r. People, 44 note. 58 CONSTITUTIONAL LIMITATIONS. [CH. IV. judgments, the result of a decision against the constitutionality of a legislative or executive act will be to render it invalid through the enforcement of the paramount law in the controversy which has raised the question.^ The same conclusion is reached by stating in consecutive order a few familiar maxims of the law. The administration of public justice is referred to the courts. To perform this duty, the first requisite is to ascertain the facts, and the next to determine the law applicable to such facts. The constitution is the fundamental law of the State, in opposition to which any other law, or any direction or order, must be inoperative and void. If, therefore, such other law, direction, or order seems to be applicable to the facts, but on comparison with the fundamental law the latter is found to be in conflict with it, the court, in declaring what the law of the case is, must necessarily determine its invalidity, and thereby in effect annul it.^ The right and the power of the courts 1 " When laws conflict in actual cases, they [the courts] must decide which is the superior law, and whicli must yield ; and as we have seen that, according to our principles, every officer remains an- swerable for what he officially does, a citizen, believing that the law he enforces is incompatible with the superior law, the constitution, simply sues tlie officer before the proper court as having unlawfully aggrieved him in the particular case. The court, bound to do justice to every one, is bound also to decide this case as a simple case of conflicting laws. The court does not decide directly upon the doings of the legislature. It simply de- cides for the case in hand, whether there actually are conflicting laws, and, if so, which is the higher law that demands obedience, when both may not be obeyed at the same time. As, however, this de- cision becomes the leading decision for all future cases of the same import, until, in- deed, proper and legitimate authority should reverse it, the question of consti- tutionality is virtually decided, and it is decided in a natural, easy, legitimate and safe manner, according to the principle of the supremacy of tlie law and the depend- ence of justice. It is one of the most iur teresting and important evolutions of the government of law, and one of the great- est protections of the citizen. It may well be called a very jewel of Anglican liberty and one of the best fruits of our political civilization." Lieber, Civil Liberty and Self-Government. " Whenever a law which the judge holds to be unconstitutional Is argued in a tribunal of the United States, he may re- fuse to admit it as a rule ; this power is the only one which is peculiar to the American magistrate, but it gives rise to immense political influence. Few laws can escape the searching analysis; for there are few which are not prejudicial to some private interest or other, and none which may not be brought before a court of justice by the choice of parties, or by the necessity of the case. But from the time that a judge has refused to apply any given law in a case, that law loses a portion of its moral sanction. The persons to whose interest it is prejudicial learn that means exist for evading its authority ; and similar suits are multi- plied until it becomes powerless. One of two alternatives must then be resorted to, — the people must alter the constitu- tion, or the legislature must repeal the law," De Tocqueville, Bemocracy in America, c. 6. 2 " It is idle to say that the authority of each branch of the government is de- fined and limited by the constitution, if there be not an independent power able and willing to enforce the limitations. Experience proves that the constitution is thoughtlessly but habitually violated ; and the sacrifice of individual rights is CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 59 to do this are so plain, and the duty is so generally — we may almost say universally — conceded, that we should not be justified in wearying the patience of the reader in quoting from the very numerous authorities upon the subject.^ too remotely connected with the objects and contests of the masses to attract their attention. From its very position it is apparent that the conservative power is lodged in the judiciary, which, in tlie ex- ercise of its undoubted rights, is bound to meet any emergency ; else causes would be decided, not only by the legislature, but sometimes without hearing or evi- dence." Per Gibson, Ch. J., in De Chas- tellux V. Fairchild, 15 Penn. St. 18. "Nor will this conclusion, to use the language of one of our most eminent jurists and statesmen, by any means sup- pose a superiority of the judicial to the legislative power. It will only be sup- posing that the power of the people is superior to both ; and that where the will of the legislature, declared in its statutes, stands in opposition to that declared by the people in the constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which are not fun- damental. Neither would we, in doing this, be understood as impugning the honest intentions, or sacred regard to jus- tice, which we most cheerfully accord to the legislature. But to be above error is to possess an entire attribute of the Deity; and to spurn its correction is to reduce to the same degraded level the most noble and the meanest of his works." Bates V. Kimball, 2 Chip. 77. See Bailey V. Gentry, 1 Mo. 164 ; s. c. 13 Am. Dec. 484. " Without the limitations and restraints usually found in written constitutions, the government could have no elements of permanence and durability ; and the dis- tribution of its powers, and the vesting their exercise in separate departments, would be an idle ceremony." Broum, J., in People v. Draper, 15 N. Y. 532, 558. 1 1 Kent, 500-507 ; Marbury v. Madi- son, 1 Cranch, 137 ; Webster on the Inde- pendence of the Judiciary, Works, Vol. III. p. 29. In this speech, Mr. Webster has forcibly set forth the necessity of leaving with the courts the power to en- force constitutional restrictions. " It can- not be denied," says he, " that one great object of written constitutions is, to keep the departments of government as distinct as possible; and for this purpose to im- pose restraints designed to have that ef- fect. And it is equally true that there is no department on which it is more neces- sary to impose restraints than upon the legislature. The tendency of things is almost always to augment the power of that department in its relation to the judi- ciary. The judiciary is composed of few persons, and those not such as mix habit- ually in the pursuits and objects which most engage public men. They are not, or never should be, political men. They have often unpleasant duties to perform, and their conduct is often liable to be can- vassed and censured where their reasons for it are not known or cannot be under- stood. The legislature holds the public purse. It fixes the compensation of all other departments ; it applies as well as raises all revenue. It is a numerous body, and necessarily carries along with it a great force of public opinion. Its members are public men, in constant con- tact with one another and with their con- stituents. It would seem to be plain enough that, without constitutional pro. visions which should be fixed and certain, such a department, in case of excitement, would be able to encroach on the judi- ciary." . . . "The constitution being the supreme law, it follows, of course, that every act of the legislature contrary to that law roust be void. But who shall decide this question* Shall the legisla- ture itself decide it ? If so, then the con- stitution ceases to be a legal, and becomes only a moral, restraint upon the legisla- ture. If they, and they only, are to judge whether their acts be conformable to the constitution, then the constitution is ad- monitory or advisory only, not legally binding, because if the construction of it rests wholly with them, their discretion, in particular cases, may be in favor of very erroneous and dangerous construc- tions. Hence the courts of law neces- sarily, when the case arises, must decide on the validity of particular acts." 60 CONSTITUTIONAL LIMITATIONS. [CH. IV. ConclusiveneBs of Judicial Decisions. But a question which has arisen and been passed upon in one case may arise again in another, or it may present itself under different circumstances for the decision of some other department or officer of the government. It therefore becomes of the highest importance to know whether a principle once authoritatively de- clared is to be regarded as conclusively settled for the guidance, not only of the court declaring it, but of all courts and all depart- ments of the government ; or whether, on the other hand, the de- cision settles the particular controversy only, so that a different decision may be possible, or, considering the diversity of human judgments, even probable, whenever in any new controversy other tribunals may be required to examine and decide upon the same question. In some cases and for some purposes the coiiclusiveness of a judicial determination is, beyond question, final and absolute. A decision once made in a particular controversy, by the highest court empowered to pass upon it, is conclusive upon the parties to the litigation and their privies, and they are not allowed after- wards to revive the controversy in a new proceedmg for the pur- pose of raising the same or any other questfcJiisr The matter in dispute has become res judicata, a thing definitely settled by ju- dicial decision ; and the judgment of the court imports absolute verity. Whatever the question involved, — whether the interpre- tation of a private contract, the legality of an individual act, or the validity of a legislative enactment, — the rule of finality is the same. The controversy has been adjudged ; and, once finally passed upon, it is never to be renewed.^ It must frequently hap- " Without this cheek, no certain limita- City v. West, 7 Wall. 82 ; Tioga R. R- tion could exist on the exercise of legisla- Co. w. Blossburg, &c. R. R. Co., 20 Wall, tive power." See also, as to the dangers 137 ; The Rio Grande, 23 Wall. 458 ; of legislative encroachments, De Tocque- Coffey v. United States, 116 U. S. 436 ; ville. Democracy in America, c. 6 ; Story. United States v. Parker, 120 U. S. 89 ; on 'Const. (4th ed.) § 532 and note. The Wilson's Exec. i>. Deen, 121 U. S. 525 ; legislature, though poseesaing a larger Skelding v. Whitney, 3 Wend. 154 ; Etli- share of power, no more represents the eredge v. Osborn, 12 Wend. 899 ; Hayes sovereignty of the people than either of v. Reese, 34 Barb. 151 ; Hyatt v. Bates, the other departments ; it derives its 35 Barb. 308 ; Harris v. Harris, 36 Barb, authority from the same high source. 88; Maddox ji. Graham, 2 Met. (Ky.)56; Bailey v. Philadelphia, &c. Railroad Co., Porter v. Hill, 9 Mass. 84 ; Norton v. 4 Harr. 889 ; Whittington v. Polk, 1 H. Doherty, 3 Gray, 372 ; Thurston v. & J. 236 ; McCauley v. Brooks, 1& Cal. 11. Thurston, 99 Mass. 39 ; Way v. Lewis, 1 Duchess of Kingston's Case, 11 State 115 Mass. 26 ; Blackinton v. Blackinton, Trials, 261 ; s. c. 2 Smith, Lead. Cas. 113 Mass. 231 ; Witmer v. Schlatter, 15 424 J Young v. Black, 7 Cranch, 565; S. & R. 150; Warner v. Scott, 39 Penn. Chapman t). Smith, 16 How. 114; Aurora St. 274; Verner v. Carson, 66 Penn. CH. IV.] CONSXEUOTION OF STATE CONSTITUTIONS. 61 pen, therefore, that a question of constitutional law will be de- cided in a private litigation, and the parties to the controversy, and all others subsequently acquiring rights under them, in the subject-matter of the suit, will thereby, become absolutely and for- ever precluded from renewing the question in respect to the mat- ter then involved. The rule of conclusiveness to this extent is one of the most inflexible principles of the law ; insomuch that even if it were subsequently held by the courts that the decision in the particular case was erroneous, such holding would not au- thorize the reopening of the old controversy in order that the final conclusion might be applied thereto.^ St. 440; Kerr v. Union Bank, 18 Md. 396; Whitehurst jj. Rogers, 38 Md. 503; Wales V. Lyon, 2 Mich. 276 ; Prentiss v. Holbrook, 2 Mieli. 372; Van Kleek V. Eggleston, 7 Mich. 511 ; Newberry v, Trowbridge, 13 Mich. 278; Barker v. Cleveland, 19 Mich. 230; Winslow v. Grindall, 2 Me. 64; Slade v. Slade, 68 Me. 157 ; Crandall e. James, 6 K. I. 144 ; Babcock v. Camp, 12 Ohio St. 11 ; Hawkins v. Joiies, 19 Ohio St. 22 ; George V. Gillespie, 1 Greene (Iowa), 421 ; Tay- lor !). Chambers, 1 Iowa, 124 ; Wright v. Leclair, 3 Iowa, 221 ; Clark v. Sammons, 12 Iowa, 368 ; Whittaker v. Johnson Co., 12 Iowa, 595; Dwyer v. Goran, 29 Iowa, 126; Fairfield v. McNany, 37 Iowa, 75; Eimer v. Richards, 25 111. 289 ; Wells v. McCIenning, 23 111. 409 ; Crow v. Bowlby, 68 III. 23 ; Peay v. Duncan, 20 Ark. 86 ; Perrine v. Serrell, BO N. J. 454 ; Weber v. Morris, &c., 36 N. J. 213 ; Fischli v. Cow- an, 1 Blackf. 360 ; Denny v. Reynolds, 24 Ind. 248 ; Bates u. Spooner, 45 Ind. 489 ; Davenport v. Barnett, 51 Ind. 329 ; Center Tp. V. Com'rs Marion Co., 110 Ind. 579 ; Warwick v. Underwood> 3 Head, 2^; Jones V. Weathersbee, 4 Strob. 60 ; Hoo- ver V. Mitchell, 26 Gratt. 387 ; Hunger- ford's Appeal, 41 Conn. 322 ; Union R. R. Co. i>. Traube, 59 Mo. 355 ; Perry v. Lewis, 49 Miss. 443; Harris v. Colquit, 44 Ga. 683 ; McCauley o. Hargroves, 48 Ga. 50 ; 8. c. 15 Am. Rep. 660 ; Castellaw v. Guil- martin, 54 Ga. 299 ; Sloan v. Cooper, 54 Ga. 486; Doyle w. Hallam, 21 Minn. 515; Phillpotts v. Blasdel, 10 Nev. 19; Case V. New Orleans, &c. R. R., 2 Woods, 236 ; Geary v. Simmons, 89 Cal. 224 ; Gee V. Williamson, 1 Port. (Ala.) 313; 8. o. 27 Am. Dec. 628 ; Cannon ;;. Brame, 45 Ala. 262; Finney v. Boyd. 26 Wis. 366; Warner v. Trow, 86 Wis. 195 ; Schroers V. Fisk, 10 Col. 699. Ram on Legal Judgment, c. 14. A judgment, how- ever, is conclusive as an estoppel, as to those facts only without the existence and proof of which it could not have been rendered ; and if it might have beeti given on any one of several grounds, it is conclusive between the parties as to neither of them. Lea v. Lea, 99 Mass. 493. And see Dickinson v. Hayes, 31 Conn. 417; Church v. Chapin, 36 Vt. 223 ; Packet Co. v. Sickles, 5 WaU. 580; Spencei: v. Dearth, 43 Vt. 98; Hill k. Morse, 61 Me. 541. A judicial sale by an administrator will pass title though the supposed intestate proves to be living. Roderigas v. Savings Institution, 63 N. Y. 460; 8. c. 20 Am. Rep. 656; co«(ra, John- son V. Beazley, 66 Mo. 260 ; s. c. 27 Am. Rep. 286, and note. 1 McLean o. Hugarin, 13 Johns. 184 ; Morgan v. Plumb, 9 Wend. 287 ; Wilder V. Case, 16 Wend. 583 ; Baker v. Rand, 13 Barb. 162 ; Kelley v. Pike, 5 Cush. 484 ; Hart w. Jewett, 11 Iowa, 276; Colburn v. Woodworth, 31 Barb 381; Newberry v. Trowbridge, 13 Mich. 278; Skeldin v. Whitney, 3 Wend. 154; Brockway v. Kin- ney, 2 Johns. 210; Plainer v. Best, 11 Johns. 630 ; Phillips v, Berick, 16 Johns. 136 ; Page v. Fowler, 37 Cal. 100 ; Howi- son V. Weeden, 77 Va. 704. The rule laid down becomes the law of the case. Bibb V. Bibb, 79 Ala. 437 ; Weare v. Dearing, 60 N. H. 66; Pittsburgh, &c. Ry. Co. v. Hixon, 110 Ind. 226 ; Heinlein v. Martin, 59 Cal. 181 ; Frankland u. Cassaday, 62 Texas,' 418; Adams Co. v. Burlington & M. R. R. Co., 56 Iowa, 94. But see Barton v. Thompson, 66 Iowa, 571. 62 CONSTITUTIONAL LIMITATIONS. [OH. lY. But if important principles of constitutional law can be thus disposed of in suits involving only private rights, and when pri- vate individuals and their counsel alone are heard, it becomes of interest to know how far, if at all, other individuals and the pub- lic at large are affected by the decision. And here it will be dis- covered that quite a different rule prevails, and that a judicial decision has no such force of absolute conclusiveness as to other parties as it is allowed to possess between the parties to the liti- gation in which the decision has been made, and those who have succeeded to their rights. A party is concluded by a judgment against him from disput- ing its correctness, so far as the point directly involved in the case was concerned, whether the reasons upon which it was based were sound or not, and even if no reasons were given therefor. And if the parties themselves are concluded, so also should be all those who, since the decision, claim to have acquired interests in the subject-matter of the judgment from or under the parties, as personal representatives, heirs-at-law, donees, or pui'chasers, and who are therefore considered in the law as privies.^ But if strangers who have no interest in that subject-matter are to be in like manner concluded, because their controversies are sup- posed to involve the same question of law, we shall not only be forced into a series of endless inquiries, often resulting in little satisfaction, in order to ascertain whether the question is the same, but we shall also be met by the query, whether we are not concluding parties by decisions which others have obtained in fictitious controversies and by collusion, or have suffered to pass without sufficient consideration and discussion, and which might perhaps have been given otherwise had other parties had an op- portunity of being heard. We have already seen that the force of a judgment does not depend upon the reasons given therefor, or upon the circum- stance that any were or were not given. If there were, they may have covered portions of the controversy only, or they may have had such reference to facts peculiar to that case, that in any other controversy, though somewhat similar in its facts, and apparently resembling it in its legal bearings, grave doubts might arise whether it ought to fall within the same general prin- 1 The question whether a judgment, by which our subject does not require us to force of its recitals, shall operate as a discuss. The cases are examined fully technical estoppel, or whether it shall and with discrimination in Robinson's operate as a bar only after the proper Practice, Vol. VL ; and are also discussed parol evidence shall have been given to in Bigelow on Estoppel, identify the subject of litigation, is one CH. IT.] OONSTKUCTION OF STATE CONSTITUTIONS. 63 ciple. If one judgment were absolutely to conclude the parties to any similar controversy, we ought at least to be able to look into the judicial mind, in order that we might ascertain of a surety that all those facts which should influence the questions of law were substantially the same in each, and we ought also to be able to see that the first litigation was conducted in entire good faith, and that every consideration was presented to the court which could properly have weight in the construction and application of the law. All these things, however, are manifestly impossible ; and the law therefore wisely excludes judgments from being used to the prejudice of strangers to the controversy, and restricts their conclusiveness to the parties thereto and their privies.^ Even parties and privies are bound only so far as regards the subject- matter then involved, and would be at liberty to raise the same questions anew in a distinct controversy affecting some distinct subject-matter.2 All judgments, however, are supposed to apply the existing law to the facts of the case ; and the reasons which are sufficient to influence the court to a particular conclusion in one case ought to be sufficient to bring it or any other court to the same conclu-- sion in all other like cases where no modification of the law has intervened. There would thus be uniform rules for the adminis- 1 Burrill «. West, 2 N. H. 190 ; Davis V. Wood, 1 Wheat. 6 ; Jackson v. Vedder, 3 Johns. 8; Case v. Beeve, 14 Johns. 79; Alexander v. Taylor, 4 Denlo, 302 ; Van Bokkelin v. Ingersoll, 5 Wend. 315 ; Smith V. Ballantyne, 10 Paige, 101; Orphan House V. Lawrence, 11 Paige, 80 ; Thomas V. Hubbell, 15 N. Y. 405; Masten .;. 01- cott, 101 N. Y. 152; Wood v. Stephen, 1 Serg. & R. 175 ; Peterson v. Lothrop, 34 Penn. St. 228; Twambly v. Henley, 4 Mass. 441 ; Bste v. Strong, 2 Ohio, 402 ; Cowles V. Harts, 3 Conn. 516 ; Floyd v. Mintsey, 5 Rich. 361 ; Riggins's Ex'rs v. Brown, 12 Ga. 271 ; Persons v. Jones, 12 Ga. 371 ; Buckingham v. Ludlum, 37 N. J. Eq. 137; Scates v. King, 110 111. 456 ; Leslie v. Bonte, 22 N. E. Kep. 594 (111.) ; Tiffany v. Stewart, 60 Iowa, 207; Lord V. Wilcox, 99 Ind. 491. Compare Benedict v. Smith, 48 Mich. 593 ; Howison V. Weeden, 77 Va. 704 ; Robinson's Prac- tice, Vol. Vn. 134 to 156; Bigelow on Estoppel, 46 et seq. 2 Van Alstine v. Railroad Co., 34 Barb. 28 ; Taylor v. McCrackin, 2 Blackf. 260; Cook V. Vimont, 6 T. B. Monr. 284. If certain facts were not necessarily in- cluded in the issue, a party is not con- cluded by the judgment as to them, Davis V. Davis, 65 Miss. 498 ; Doonan v. Glynn, 28 W. Va. 716 ; Lorillard v. Clyde, 99 N. Y. 196; Belden v. State, 103 N. Y. 1 ; Umlauf v. Umlauf, 117 111. 580; Concha V. Concha, L. R. 11 App. Cas. 541. If the second action involves the same property and more, the judgment is conclusive only as to those issues which were actually tried and determined. Foye v. Patch, 182 Mass. 105. See Metcalf v. Gilmore, 63 N. H. 174. But if the facts were within the issue, the judgment is conclusive as to them, although the question raised in the second action was not actually liti- gated. Harmon v. Auditor, 123 111. 123; Fairchild v. Lynch, 99 N. Y. 369; Tray, hern v. Colburn, 66 Md. 277 ; Kennedy v. McCarthy, 73 Ga. 346; Shenandoah V. R. B. Co. V. Griffith, 76 Va. 913; Cleve- land V. Creviston, 93 Ind. 31 ; Chouteau V. Gibson, 76 Mo. 38. See, for a further discussion of this doctrine, its meaning and extent, Spencer v. Dearth, 43 Vt. 08, and the very full and exhaustive discussion in Robinson's Practice, VoL VII. 64 CONSTITUTIONAL LIMITATIONS. [CH. IV, tration of justice, and the same measure that is meted out to one would be received by all others. And even if the same or any other court, in a subsequent case, should be in doubt concerning the correctness of the decision which has been made, there are consequences of a very grave character to be contemplated and weighed before the experiment of disregarding it should be ven- tured upon. That state of things, when judicial decisions con- flict, so that a citizen is always at a loss in regard to his rights and liis duties, is a very serious evil ; and the alternative of ac- cepting adjudged cases as precedents in future controversies rest- ing upon analogous facts, and brought within the same reasons, is obviously preferable.' Precedents, therefore, become important, and counsel are allowed and expected to call the attention of the court to them, not as concluding controversies, but as guides to the judicial mind. Chancellor Kent says : " A solemn decision upon a point of law arising in any given case becomes an author- ity in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, un- less it can be shown that the law was misunderstood or misapr plied in that particular case. If a decision has been made upoi^ solemn argument and mature deliberation, the presumption is in favor of its correctness, and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would therefore be ex- tremely inconvenient to the public if precedents were not duly re- garded, and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them, and people in general can venture to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has once been deliberately adopted and declared, it ought not to be disturbed unless by a court of appeal or review, and never by the same court, except for very urgent reasons, and upon a clear manifestation of error ; and if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law." ^ I 1 Kent, 475. And see Cro. Jac. 527; son, 16 Johns. 382; Goodell v. Jackson, Bex V. Cox, 2 Burr. 787 ; King v. Younger, 20 Johns. 693 ; Bates v. Relyea, 23 Wend. 5 T. B. 450 ; Goadtitle v. Otway, 7 T. B. 336 ; Emerson v. Atwater, 7 Mich. 12 ; 416; Selby v. Bardons, 3 B. & Ad. 17; Nelson v. Allen, 1 Yerg. 360; Palmer v. Fletcher v. Lord Somers, 3 Bing. 688 ; Lawrence, 5 N. Y. 889 ; Kneeland v. Mil- Hammond u. Anderson, 4 Bos. & P. 69 ; waukee, 15 Wis. 454 ; Boon v. Bowers, .Lewis V. Thornton, 6 Munf . 94 ; Dugan v. 30 Miss. 246 ; Frink «. Darst, 14 111. 304 ; HoUins, 18 Md. 149 ; Anderson v. Jack- Broom's Maxims, 109. Dr. Lieber thinks CH. IV.] CONSTKUCTION OF STATE CONSTITUTIONS. 65 The doctrine of stare decisis, however, is only applicable,* in its full force, within the territorial jurisdiction of the courts making the decisions, since there alone can such decisions be regarded as having established any rules. Rulings made under a similar legal system elsewhere may be cited and respected for their reasons, but are not necessarily to be accepted as guides, except in so far as those reasons commend themselves to the judicial mind.^ the doctrine of the precedent especially valuable in a free country. " Liberty and steady progression require the principle of the precedent in all spheres. It is one of tlie roots with which the tree of liberty fastens in the soil of real life, and through which it receives the sap of fresh exist- ence. It is the weapon by which inter- ference is warded off. The principle of the precedent is eminently philosophical. The English Constitution would not have developed itself without it. What is called the English Constitution consists of the fundamentals of the British polity, laid down in custom, precedent, decisions, and statutes; and the common law in it is a far greater portion than the statute law. The English Constitution is chiefly a com- mon-law constitution ; and this reflex of a continuous society in a continuous law is more truly philosophical than the theo- retic and systematic, but lifeless, consti- tutions of recent France." Civ. Lib. and Self- Gov. See also his chapter on prece- dents in the Hermeneutics. In Nelson v. Allen, 1 Yerg. 360, 376, where the consti- tutionality of tlie " Betterment Law " came under consideration, the court {White, J.) say: "Whatever might be my own opinion upon this question, not to assent to its settlement now, after two solemn decisions of this court, the last made upwards of fourteen years ago, aqd not only no opposing decision, but no at- tempt even by any case, during all this time, to call the point again in contro- versy, forming a complete acquiescence, would be, at the least, inconsistent, per- haps mischievous, and uncalled for by a correct discharge of oflicial duty. Much respect has always been paid to the con- temporaneous construction of statutes, and a forbidding caution hath always accompanied any approach towards un- settling it, dictated, no doubt, by easily foreseen consequences attending a sud- den change of a rule of property, neces- sarily, introductory at least of confusion, increased litigation, and the disturbance of the peace of society. The most able judges and the greatest names on the bench have held this view of tlie subject, and occasionally expressed themselves to that effect, either tacitly or openly, intimating that if they had held a part in the flrst construction they would have been of a different opinion ; but the con- struction having been made, they {jive their assent thereto. Thus Lord Ellen- borough, in 2 East, 302, remarks : ' I think it is better to abide by that determina- tion, than to introduce uncertainty into this branch of the law, it being often more important to have the rule settled, than to determine what it shall be. I am not, however, convinced by tlie reasoning in this case, and if the point were new I should think otherwise.' Lord Mansfield, in 1 Burr. 419, says : ' Where solemn de- terminations acquiesced under had settled precise cases and a rule of property, they ought, for the sake of certainty, to be ob- served, as if they had originally formed a part of the text of the statute.' And Sir James Mansfield, in 4 B. & P. 69, says : ' I do not know how to distinguish this from the case before decided in the court. It is of greater consequence that the law should be as uniform as possible, than that the equitable claim of an individual should be attended to.' " And see People V. Cicotte, 16 Mich. 283. How far a judgment rendered by a court concludes, notwithstanding it was one given under the law of necessity, in consequence of an equal division of the court, see Durant «. Essex Co., 7 Wall. 107; s. c. 101 U. S. 555; Hartman v. Greenhow, 102 U. S. 672 ; Morse v. Goold, 11 N. Y. 281 ; Lyon v. Circuit Judge, 37 Mich. 377; and the cases collected in Northern R. R. v. Concord R. R., 50 N. H. 176. 1 Caldwell v. Gale, 11 Mich. 77 ; Koontz V. Nabb, 16 Md. 549 ; Nelson v. Goree, 34 Ala. 566 ; Jamison v. Burton, 43 Iowa, 282. 66 CONSTITUTIONAL LIMITATIONS. [CH. IV. Great Britain and the thirteen original States had each substan- tially the same system of common law originally, and a decision now by one of the higher courts of Great Britain as to what the common law is upon any point is certainly entitled to great re- spect in any of the States, though not necessarily to be accepted as binding authority any more than the decisions in any one of the other States upon the same point. It gives us the opinions of able judges as to what the law is, but its force as an authorita- tive declaration must be confined to the country for which the court sits and judges. But an English decision before the Rev- olution is in the direct line of authority ; and where a particular statute or clause of the constitution has been adopted in one State from the statutes or constitution of another, after a judicial con- struction has been given it in such last-mentioned State, it is but just to regard the construction as having been adopted, as well as the words ; and all the mischiefs of disregarding precedents would follow , as legitimately here as in any other case.^ It will of course sometimes happen that a court will find a former decision so unfounded in law, so unreasonable in its deduc- tions, or so mischievous in its consequences, as to feel compelled to disregard it. Before doing so, however, it will be well to con- sider whether the point Involved is such as to have become a rule of property, so that titles have been acquired in reliance 1 Bond V. Appleton, 8 Mass. 472 ; Rut- construing the law must be inflexibly fol- land V. Mendon, 1 Pick. 154 ; Common- lowed, since the circumstances in the wealth V. Hartnett, 3 Gray, 450; Turn- State adopting it may be so different as pike Co. ti. People, 9 Barb. 167 ; Campbell to require a different construction. Little V. Quinlin, 4 111. 288; Little v. Smith, v. Smith, 5 111. 400; Lessee of Gray v. 5 111. 400; Rigg v. Wilton, 13 111. 15; Askew, 3 Ohio, 466; Jamison v. Burton, Tyler v. Tyler, 19 111. 151 ; Fisher v. Deer- 43 Iowa, 282. It has very properly been ing, 60 III. 114; Langdon v. Applegate, 5 held that the legislature, by enacting, Ind. 327 ; Clark v. JeSersonville, &c. R. R. without material alteration, a, statute Co., 44 Ind. 248 ; Fall v. Hazelrigg, 45 Ind. which had been judicially expounded by 676; Ingraham o. Regan, 23 Miss. 218; the highest court of the State, must be Adams v. Field, 21 Vt. 256 ; Drennan v. presumed to have intended that the same People, 10 Mich. 169 ; Daniels v. Clegg, words should be received in the new stat- 28 Mich. 32 ; Harrison u. Sager, 27 Mich, ute in the sense which had been attributed 476 ; Pangborn v. Westlake, 36 Iowa, to them in the old. Grace v. McElroy, 1 546 ; Attorney-General v. Brunst, 3 Wis. Allen, 663 ; Cronan v. Cotting, 104 Mass. 787; Poertner ^. Russell, 33 Wis. 193; 245; Low v. Blanchard, 116 Mass. 272. Myrick v. Hasey, 27 Me. 9; People v. It is proper to accept and follow the de- Coleman, 4 Cal. 46 ; Bemis v. Becker, 1 cisions of courts of another State upon Kan. 226; Walker u. Cincinnati, 21 Ohio the construction and validity of their St. 14; Hess v. Pegg, 7 Nev. 23 ; Freeze own. statutes. Sidwell v. Evans, 1 Pen. V. Tripp, 70 111. 496; In re Tuller, 79 111. & W. 383 ; s. c. 21 Am. Dec. 887 ; Bank 99 ; Ex parte Mathews, 62 Ala. 51 ; Dan- of Illinois n. Sloo, 16 La. 639 ; s. c. 35 ville V. Pace, 25 Gratt. 1 ; Bradbury v. Am. Dec. 223, except when it conflicts Davis, 5 Col. 265. But it does not neces- with the constitution of the adopting sarily follow that the prior decision State. Risser v. Hoyt, 53 Mich. 185. CH. IV.] CONSTKUCTION OF STATE CONSTITUTIONS. 67 upon it, and vested rights will be disturbed by any change ; for in such a case it may be better that the correction of the error be left to the legislature, which can control its action so as to make it prospective only, and thus prevent unjust consequences.^ Whenever the case is such that judicial decisions which have been made are to be accepted as law, and followed by the courts in future cases, it is equally to be expected that they will be fol- lowed by other departments of the government also. Indeed, in the great majority of cases, the officers of other departments have no option ; for the courts possess the power to enforce their con- struction of the law as well as to declare it ; and a failure to accept and follow it in one case would only create a necessity for new litigation with similar result. Nevertheless, there are ex- ceptions to this rule which embrace all those cases where new action is asked of another department, which that department is at liberty to grant or refuse for any reasons which it may regard as sufficient. We cannot conceive that, because the courts have ^ " After an erroneous decision touch- ing rights of property lias been followed thirty or forty years, and even a much less time, the courts cannot retrace their steps without committing a new error nearly as great as the one at the first." Branson, J., in Sparrow v. Kingman, 1 N. Y. 246, 260. See also Emerson v. At- water, 7 Mich. 12 ; Rothschild v. Grix, 31 Mich. 150 ; L-oeb v. Mathis, 37 Ind. 806; Pond V. Irwin, 15 N. E. Rep. 272 (Ind.) , Paulson 17. Portland, 19 Pac. Rep. 450 (Oreg.) ; Adams Co. v. Burlington & M. R. R. Co., 55 Iowa, 94 ; Davidson v. Briggs, 61 Iowa, -309 ; State v. Whitworth, 8 Lea, 594. Where an old constitution has been construed by the court, a new court after the adoption of a new con- stitution will follow the old construction without regard to its own views. Em- ery V. Reed, 65 Cal. 351. "It is true that when a principle of law, doubtful in its character or uncer- tain in the subject-matter of its appli- cation, has been settled by a series of judicial decisions, and acquiesced in for a considerable time, and important rights and interests have become established under such decisions, courts will hesitate long before they will attempt to overturn the result so long established. But when it is apparently indifferent which of two or more rules is adopted, the one which shall have been adopted by judicial sanc- tion will be adhered to, though it may not, at the moment, appear to be the preferable rule. But when a question involving important public or private rights, extending through all coming time, has been passed upon on a single occasion, and which decision can in no just sense be said to have been acqui- esced in. It IS not only the right, but the duty, of the court, when properly called upon, to re-examine the questions in- volved, and again subject them to judicial scrutiny. We are by no means unmindful of the salutary tendency of the rule stare decisis, but at the same time we cannot be unmindful of the les- sons furnished by our own consciousness, as well as by judicial history, of the lia- bility to error and the advantages of review " Per Smith, J., Pratt u. Brown, 3 Wis. 603, 609 And see Kneeland v. Mil- waukee, 15 Wis. 454 ; Taylor v. French, 19 Vt. 49 ; Bellows v. Parsons, 13 N. H. 256 ; Hannel v Smith, 15 Ohio, 134 ; Day V. Munson, 14 Ohio St. 488 ; Green Cas- tle, &o. Co. V. State, 28 Ind. 382 , Harrow V Myers, 29 Ind. 469; Paul v. Davis, 100 Ind 422; Burks v Hinton, 77 Va. 1; Mead v. MoGraw, 19 Ohio St. 55; Linn v Minor, 4 Nev. 462, Willis v. Owen, 43 Texas, 41, 48 ; Ram on Legal Judgment, o. 14, § 3. " Common error " does not make law until sanctioned by a su- perior tribunal, and subsequently treated as law in business affairs. Ocean Beach Ass. V. Brinley, 34 N. J. Eq. 438. 68 CONSTITUTIONAL LIMITATIONS. [CH. IV. djeclared an expiring corporation to have been constitutionally created, the legislature would be bound to renew its charter, or the executive to sign an act for that purpose, if doubtful of the constitutional authority, even though no other adverse reasons existed.! In the enactment of laws the legislature must act upon its own reasons ; mixed motives of power, justice, and policy in- fluence its action ; and it is always justifiable and laudable to lean against a violation of the constitution. Indeed, cases must some- times occur when a court should refrain from declaring a statute unconstitutional, because not clearly satisfied that it is so, though, if the judges were to act as legislators upon the question of its en- actment, they ought with the same views to withhold their assent, from grave doubts upon that subject. The duty is different in the two cases, and presumptions may control in one which do not exist in the other.^ But those cases where new legislation is sought stand by themselves, and are not precedents for those which involve only considerations concerning the constitutional validity of existing enactments. The general acceptanfce of judi- cial decisions as authoritative, by each and all, can alone prevent confusion, doubt, and uncertainty, and any other course is incom- patible with a true government of law. Construction to he Uniform. A cardinal rule in dealing with written Instruments is that they are to receive an unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some sub- sequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable. A principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. It is 1 In the celebrated case of the appli- some cases to so shape its legislation that cation of the Bank of the United States the federal Supreme Court sliould have for a new charter, President Jackson felt no opportunity to question and deny its himself at liberty to act upon his own validity. view of constitutional power, in opposi- 2 A constitution forbade the payment tion to that previously declared by the of any claim arising against the State Supreme Court, and President Lincoln under any agreement made vfithout au- expressed similar views regarding the thority of law. It was held that this did -conclusiveness of the Dred Scott decision not prevent the legislature from award- •upon executive and legislative action, ing pay for work done under an act which See Story on Const. (4th ed.) § 375, note, after its completion had been declared •It is notorious that while the reconstruo- unconstitutional; that the word "law" ■tion of States was going on, after the late did not necessarily mean a constitutional civil w&r. Congress took especial pains in law. Miller «, Dunn, 72 Cat 462. CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS, 69 with special reference to the varying moods of public opinion, and with a view to putting the fundamentals of government beyond their control, that these instruments ai-e framed ; and there can be no such steady and imperceptible change in their rules as in- heres in the principles of the common law. Those beneficent maxims of the common law which guard person and property have grown and expanded until they mean vastly more to us than they did to our ancestors, and are more minute, particular, and pervading in their protections ; and we may confidently look for- ward in the future to still further modifications in the direction of improvement. Public sentiment and action effect such changes, and the courts recognize them ; but a court or legislature which should allow a change in public sentiment to influence it in giving to a written constitution a construction not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty ; and if its course could become a precedent, these instruments would be of little avail. The violence of public passion is quite as likely to be in the direction of oppression as in any other ; and the necessity for bills of rights in our fundamental laws lies mainly in the danger that the legislature will be influenced, by temporary ex- citements and passions among the people, to adopt oppressive en- actments. "What a court is to do, therefore, is to declare the lam as written, leaving it to the people themselves to make such changes as new circumstances may require.^ The meaning of tbe constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it.^ The Intent to Govern, The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. In the case of all written laws, it is, the intent of the lawgiver that is to be enforced. But this intent is to be found in the instrument itself. It is to be presumed that language has been employed with sufficient precision to convey it, and unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain except to enforce it. "Where a law is plain and unambiguous, whether it be expressed in gen- eral or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is 1 People V. Morrell, 21 Wend. 56.3 ; ^ Campbell, J., in People v. Blodgett, NeweU v. People, 7 N. T. 9; Hyatt v. 13 Mich. 127, 138; Scott «. Sandford, 19 Taylor, 42 N. Y.. 258 ; Slack v. Jacobs, 8 HovC. 393. W. Va. 612, 650. 70 CONSTITUTIONAL LIMITATIONS. [oh. IV, left for construction."! Possible or even probable meanings, when one is plainly declared in the instrument itself, the courts are not at liberty to search for elsewhere. 1 United States v. Fisher, 2 Cranch, 358; Bosley v. Mattingley, 14 B. Monr. 89; Sturgis o. Crowninshield, 4 Wheat. 122 ; Schooner Paulina's Cargo v. United States, 7 Cranch, 52 ; Ogden v. Strong, 2 Faine, C. C. 684 ; United States v. Bags- dale, 1 Hemp. 497 ; Southwark Bank v. Commonwealth, £6 Penn. St. 446 ; Ingalls V. Cole, 47 Me. 530 ; MeCluskey v. Crom- well, 11 N. Y. 593 ; Furman v. New York, 5 Sandf. 16 ; Newell v. People, 7 N. Y. 9 ; People V. N. Y. Central B. B. Co., 24 N.Y. 485 ; Bidwell v. Whittaker, 1 Mich. 469 ; Alexander v. Worthington, 5 Md. 471; Cantwell v. Owens, 14 Md. 215 ; Case v. Wildridge, 4 Ind. 51 ; Spencer v. State, 5 Ind. 41 ; Pitman v. Flint, 10 Pick. 504 ; Heirs of Ludlow v, Johnson, 3 Ohio, 553; District Township v. Duhuque, 7 Iowa, 262; Pattison v. Yuba, 13 Cal. 175; Eze- f kiel V. Dixon, 3 Ga. 146 ; In re Murphy, ' 23 N. J. 180 ; Attorney-General v. Detroit 6 Erin P. E. Co., 2 Mich. 138; Smith V. Thursby, 28 Md. 244 ; State v. Blasdel, 4 Nev. 241 ; State v. Doron. 5 Nev. 399; Hyatt !>. Taylor, 42 N. Y. 268 ; Johnson B. Hudson E. E. Co., 49 N. Y. 455; Beardstown v. Virginia, 76 111. -34; St. Louis, &c. B. E. Co. v. Clark, 63 Mo. 214 ; Mundt V. Sheboygan, &c. B. E. Co., 31 Wis. 41 ; Slack v. Jacob, 8 W. Va. 612 ; Hawbecker v. Hawbecker, 43 Md. 516; Ex parte Mayor of Florence, 78 Ala. 419. The remarks of Mr. Justice Branson in People V. Purdy, 2 Hill, 35, are very forci- ble in showing the impolicy and danger of looking beyond tlie instrument itself to ascertain its meaning, when the terms employed are positive and free from all ambiguity. " It is said that the Consti- tution does not extend to public corpora- tions, and therefore a majority vote was sufficient. I do not so read the Consti- tution. The language of the clause is : ' The assent of two-thirds of the mem- bers elected to each brancli of the legis- lature shall be requisite to everi/ bill creat- ing, continuing, altering, or renewing anv body politic or corporate.' These words are as broad in their signification as any which could have been selected for the occasion from our vocabulary, and there is not a syllable in the whole instrument tending in the slightest degree to limit or qualify the universality of the language. If the clause can be so construed tliat it shall not extend alike to all corporations, whether pubUu or private, it may then, I think, be set down as an established fact that the English language is too poor for the framing of fundamental laws which shall limit the powers of the legislative branch of the government. No one has, I believe, pretended that the Constitution, looking at that alone, can be restricted to any particular class or description of cor- porations. But it is said that we may look beyond the instrument for the pur- pose of ascertaining the mischief against which the clause was directed, and thus restrict its operation, But who shall tell us what that mischief was t Although most men in public life are old enough to remember the time when the Constitution was framed and adopted, they are not agreed concerning the particular evils against which this clause was directed. Some suppose the clause was intended to guard against legislative corruption, and others that it was aimed at monopolies. Some are of opinion that it only extends to private without touching public cor- porations, while others suppose that it only restricts the power of the legislature when creating a single corporation, and not when they are made by the hundred. In this way a solemn instrument — for so I think the Constitution should be con- sidered — is made to mean one thing by one man and something else by an- other, until, in the end, it is in danger of being rendered a mere dead letter ; and that, too, where the latiguage is so plain and explicit that it is impossible to mean more than one thing, unless we first lose sight of the instrument itself, and allow ourselves to roam at large in the bound- less fields of speculation. For one, I dare not venture upon such a course. Written constitutions of government will soon come to be regarded as of little value if their injunctions may be thus lightly over- looked ; and the experiment of setting a boundary to power will prove a failure. We are not at liberty to presume that the framers of the Constitution, or the CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 71 " Whether we are considering an agreement between parties^ a statute, or a constitution, with a view to its interpretation, the thing which we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signifi- cation of the words employed, in the order of grammatical ar- rangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between differ- ent parts of the same writing, then that meaning, apparent on the face of the instrument, is the one which alone we are at lib- erty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have a right to add to or take away from that meaning." ^ The Whole Instrument to he examined. Nor is it lightly to be inferred that any portion of a written law is so ambiguous as to require extrinsic aid in its construction. Every such instrument is adopted as a whole, and a clause which, standing by itself, might seem of doubtful import, may yet be" made plain by comparison with other clauses or portions of the people who adopted it, did not under- stand the force of language." See also same case, 4 Hill, 384, and State i^. King, 44 Mo. 286. Another court has said: " This power of construction in courts is a mighty one, and, unrestrained by set- tled rules, would tend to throw a painful uncertainty over the effect that might be given to the most plainly worded statutes, and render courts, in reality, the legisla- tive power of the State. Instances are not wanting to confirm this. Judge-made law has overrode the legislative depart- ment. It was the boast of Chief Justice Pemberton, one of the judges of the dtes- pot Charles II., and not the worst even of those times, that he had entirely outdone the Parliament in making law. We think that system of jurisprudence best and safest which controls most by fixed rules, and leaves least to the discretion of the judge ; a doctrine constituting one of the points of superiority in the common law over that system which has been admin- istered in France, where authorities had no force, and the law of each case was what the judge of the case saw fit to make it. We admit that the exercise ,of an unlimited discretion may, in apar- .ticular instance, be attended with a salu- tary result ; still history informs us that it has often been the case that the arbi- trary discretion of a judge was the law of a tyrant, and warns us that it may be so again." Perkins, J., in Spencer v. State, 5Ind. 41, 46. "Judge-made law," as the phrase is here employed, is that made by judicial decisions which construe away the meaning of statutes, or find meanings in them the legislature never held. The phrase is sometimes used as meaning, simply, the law tliat becomes established by precedent. The uses and necessity of judicial legislation are considered and ex- plained at lengtli by Mr. Austin, in his Province of Jurisprudence. • Newell V. People, 7 N. Y. 9, 97, per Johnson, 3. ; Chesapeake, &c. By. Co. v. Miller, 19 W. Va. 409. And see Denn v. Eeid, 10 Pet. 524 ; Greencastle Township V. Black, 5 Ind. 566 ; Bartlctt v. Morris, 9 Port. 266 ; Leonard o. Wiseman, 31 Md. 201, per Bartol, Ch. J. ; Way v. Way, 64 111. 406; McAdoo v. Benbow, 63 N, C. 461; Hawkins v. Carrol, 60 Miss. 735; Cearfoss v. State, 42 Md. 403 ; Douglas v. Freeholders, &c., 38 N. J. 214; Gold v. Fite, 2 Bax. 287 ; State ». Gammon, 73 Mo. 421 ; Broom's Maxims (6th Am. ed.), 661, marg. 72 CONSTITUTIONAL LIMITATIONS. [CH. IV. same law. It is therefore a very proper rule of construction, that the whole is to be examined with a view to arriving at the true inten- tion of each part ; and this Sir Edward Coke regards as the most natural and genuine method of expounding a statute.^ If any section of a law be intricate, obscure, or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections, and finding out the sense of one clause by the words or obvious intent of another.^ And in making this com- parison it is not to be supposed that any words have been em- ployed without occasion, or without intent that they should have effect as part of the law. The rule applicable here is, that effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make some words idle and nugatory .^ This rule is applicable with special force to written constitu- tions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication.* It is scarcely conceivable tliat a case can arise where a court would be justified in declaring any por- tion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself ; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together.^ 1 Co. Lit. 381 a. * Wolcott v. Wigton, 7 Ind. 44 ; People 2 Stowell !). Lord Zonoh, Plowd. .365; v. Purdy, 2 Hill, 31, per Branson, J.; Chance u. Marion County, 64 111. 66; Greencastle Township v. Black, 5 Ind. Dyer o. Bayne, 54 Md. 87 ; Broom's 557 ; Green v. Weller, 32 Miss. 650. Maxims, 521. 5 People v. Wright, 6 Col. 92. It is a * Attorney-General o. Detroit & Erin general rule in the construction of writ- Plank Road Co., 2 Mich. 138; People v. ings, that, a general intent appearing, it Burns, 5 Mich. 114 ; District Township v. shall control the particular intent ; but Dubuque, 7 Iowa, 262 ; Manly v. State, 7 this rule must sometimes give way, and Md. 135 ; Parkinson v. State, 14 Md. 184 ; effect must be given to a particular intent Belleville Railroad Co. v. Gregory, 15 111. plainly expressed in one part of a constii 20; Ogden v. Strong, 2 Paine, C. C. 584; tution, though apparently opposed to a Ryegate v. Wardsboro, 30 Vt. 746 ; Brooks general intent deduced from other parts. V. Mobile School Commissioners, 31 Ala. Warren «. Shuman, 5 Tex. 441. In Quick 227 ; Den v. Dubois, 16 N. J. 285 ; Den v. v. Whitewater Township, 7 Ind. 570, it Schenck, 8 N. J. 29 ; Bigelow v. W. Wis- was said that if two provisions of a writ- consin R. K., 27 Wis. 478 ; Gas Company ten constitution are irreconcilably repug- V. Wheeling, 8 W. Va. 320 ; Parker o. nant, that which is last in order of time Savage, 6 Lea, 406 ; Crawfordsville, &c. and in local position is to be preferred. Co. V. Fletcher, 104 Ind. 97. See Sams In Gulf, C. & S. F. Ry. Co. v. Rambolt, 0. King, 18 Fla. 557. 67 Tex. 654, this rule was recognized as CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 73 In interpreting clauses we must presume that words have been employed in their natural and ordinary meaning. As Marshall, Ch. J., says : The framers of the constitution, and the people who adopted it, " must be understood to have employed words in their natural sense, and to have intended what they have said." i This is but saying that no forced or unnatural construction is to be put upon their language ; and it seems so obvious a truism that one expects to see it universally accepted without question ; but the attempt is made so often by interested subtlety and ingenious refinement to induce the courts to force from these instruments a meaning which their framers never held, that it frequently be- comes necessary to re-declare this fundamental maxim.^ Narrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for them- a last resort, bat if the last provision is more comprehensive and specific, it was held that it should be given effect on that ground. The rule applies to constitutions that a later amendment operates to repeal an earlier provision inconsistent with it. People V. Angle, 109 N. Y. 564. 1 Gibbons v. Ogden, 9 Wheat. 1, 188. See Settle «. Van Evrea, 49 N. Y. 281 ; Jenkins v. Ewin, 8 Heisk. 456; Way u. Way, 64 111. 406 : Stuart v. Hamilton, 66 111. 253; Hale v. Everett, 53 N. H. 9; State V. Brewster, 42 N. J. 125; Carpen- ter V. People, 8 Col. 116. 2 State w. Mace, 6 Md. 337 ; Manly v. State, 7 Md. 135; Green v. Weller, 32 Miss. 650 ; Greencastle Township e. Black, 5 Ind. 566 ; People i.. N. Y. Cen- tral Railroad Co., 34 Barb. 123, and 24 N. Y. 485 ; Story on Const. § 453. " Tlie true sense in which words are used in a statute is to be ascertained generally by taking them in their ordinary and popu- lar signification, or, if they be terras of art, in their technical signification. But it is also a cardinal rule of exposition, that the intention is to be deduced from the whole and every part of the statute, taken and compared together, from the words of the context, and such a con- struction adopted as will best effectuate the intention of the lawgiver. One part is referred to in order to help the con- struction of another, and the intent of the legislature is not to be collected from any particular expression, but from a general view of the whole act. Dwarris, 658, 698, 702, 703. And when it appears that the framers have used a word in a particular sense generally in the act, it will be presumed that it was intended to be used in. the same sense throughout the act, unless an intention to give it a differ- ent signification plainly appears in the particular part of the act alleged to be an exception to the general meaning indi- cated. Dwarris, 704 et seq. When words are used to which the legislature has given a plain and definite import in the act, it would be dangerous to put upon them a construction which would amount to holding tliat the legislature did not mean what it has expressed. It follows from these principles that the statute itself furnishes the best means of its own exposition ; and if the sense in which words were intended to be used can be clearly ascertained from all its parts and provisions, the intention thus indicated shall prevail, without resorting to other means of aiding in the construction. And these familiar rules of construction apply with at least as much force to the cqji- struction of written constitutions as to statutes ; the former being presumed to be framed with much greater care and consideration than the latter." Green v. Weller, 32 Miss. 650, 678. Words re- enacted after they have acquired a set- tled meaning will be understood in that meaning. Fulmer v. Commonwealth, 97 Penn. St. 503. The argument ab incon- venienti cannot be suffered to infiuence the courts by construction to prevent the evident intention. Chance v. Marion Coufity, 64 111. 66. 74 CONSTITUTIONAL LIMITATIONS. [CH. IV. selves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government. But it must not be forgotten, in construing our constitutions, that in many particulars they are but the legitimate suctjessors of the great charters of English liberty, whose provisions declaratory of the rights of the subject have acquired a well-understood mean- ing, which the people must be supposed to have had in view in adopting them. We cannot understand these provisions unless we understand their history ; and when we find them expressed in technical words, and words of art, we must suppose these words to be employed in their technical sense. When the Constitution speaks of an ex post facto law, it means a law technically known by that designation ; the meaning of the phrase having become defined in the history of constitutional law, and being so familiar to the people that it is not necessary to employ language of a more popular character to designate it. The technical sense in these cases is the sense popularly understood, because that is the sense fixed upon the words in legal and constitutional history ■where they have been employed for the protection of popular rights. 1 The Common Law to he kept in View. It is also a very reasonable rule that a State constitution shall be understood and construed in the light and by the assistance of the common law, and with the fact in view that its rules are still * See Jenkins v. Ewin, 8 Heisk. 476. Kent, of which the thirteen provinces It is quite possible, however, in applying were a part and parcel ; for in their char- constitutional maxims, to overlook en- ters they were to hold of the manor of tirely the reason upon which they rest, Greenwich in Kent, of which manor they and " considering merely the letter, go were by charter to be parcel ! The opin- but skin deep into the meaning." On the ion, it is said, " raised a very loud laugh," great debate on the motion for withdraw- but Sir James continued to support it, ing the confidence of Parliament from the and concluded by declaring that he would ministers, after the surrender of Corn- give the motion a hearty negative. Thus wallis, — a debate which called out the would lie have settled a great principle of best abilities of Fox and Pitt as well as of constitutional right, for which a seven the ministry, and necessarily led to the years' bloody war had been waged, by discussion of the primary principle in putting it in the form of a meaningless free government, that taxation and repre- legal fiction. Hansard's Debates, Vol. sentation shall go together, — Sir .James XXII. p. 1184. Lord Mahon, following Mariott rose, and with great gravity pro- Lord Campbell, refers the origin of this ceeded to say, that if taxation and repre- wonderful argument to Mr. Hardinge, a sentation were to go hand in hand, then Welsh judge, and nephew of Lord Cam- Britain had an undoubted right to tax den ; 7 Mahon's Hist. 139. He was said America, besause she was represented in to have been a good lawyer, but must tlie British Parliament. She was repre- have read the history of his country to sented by the members for the county of little purpose. CH. IV.J CONSTEUCTION OF STATE CONSTITUTIONS. 75 left in force. By this we do not mean that the common law is to control the constitution, or that the latter is to be warped aud perverted in its meaning in order that no inroads, or as few as possible, may be made in the system of common-law rules, but only that for its definitions we are to draw from that great foun- tain, and that in judging what it means, we are to keep in mind that it is not the beginning of law for the State, but that it assumes the existence of a well-understood system which is still to remain in force and be administered, but under such limita- tions and restrictions as that instrument imposes.^ It is a maxim with the courts that statutes in derogation of the common law shall be construed strictly,^ — a maxim which we fear is some- times perverted to the overthrow of the legislative intent; but there can seldom be either propriety or safety in applying this maxim to constitutions. When these instruments assume to make any change in the common law, the change designed is generally a radical one ; but as they do not go minutely into particulars, as do statutes, it will sometimes be easy to defeat a provision, if courts are at liberty to say that they will presume against any intention to alter the common law further than is expressly de- clared. A reasonable construction is what such an instrument demands and should receive ; and the real question is, what the people meant, and not how meaningless their words can be made by the application of arbitrary rules.* 1 State V. Noble, 21 N. E. Rep. 244 (Ind.). 2 Broom's Maxims, 83 ; Sedg. on Stat. & Const. Law, 313. See Harrison v. Leacli, 4 W. Va. 883. 8 Under a clause of the constitution of Michigan which provided that "the real and personal estate of every female acquired before marriage, and all property to which she may afterwards become en- titled, by gift, grant, inheritance, or de- vise, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations, or en- gagements of her husband, and may be devised or bequeathed by her as if she were unmarried," it was held that a mar- ried woman could not sell her personal property without the consent of her hus- band, inasmuch as the power to do so was not expressly conferred, and the clause, being in derogation of the common law, was not to be extetided by construction. Brown v. Fifield, 4 Mich. 322. The dan- ger of applying arbitrary rules in the construction of constitutional principles might well, as it seems to us, be illus- trated by this case. For while on the one hand it might be contended that, as a provision in derogation of the common law, the one quoted should receive a strict construction, on the other hand it might be insisted with perhaps equal rear son that, as a remedial provision, in furtherance of natural right and justice, it should be liberally construed, to effect the beneficial purpose had in view. Tlius arbitrary rules, of directly opposite ten- dency and force, would be contending for the mastery in the same case. The sub- sequent decisions under the same provi- sion do not appear to have followed this lead. See White .;. Zane, 10 Mich. 333 ; McKee v. Wilcox, 11 Mich. 358 ; Farr v. Sherman. 11 Mich, 33; Watson v. Thur- ber, 11 Mich. 467 ; Burdeno v. Amperse, 14 Mich. 91 ; Tong v. Marvin, 15 Mich. 60 ; Tillman v. Shackleton, 15 Mich. 447; Devries v. Conklin, 22 Mipli. 255 ; Rankin V. West, 25 Mich, 196. The common law 76 CONSTITUTIONAL LIMITATIONS. [OH. IV. As a general thing, it is to be supposed that the same word is used in the same sense wherever it occurs in a constitution.^ Here again, however, great caution must be observed in applying an arbitrary rule ; for, as Mr. Justice Stori/ has well observed : " It does not follow, either logically or grammatically, that be- cause a word is found in one connection in the Constitution with a definite sense, therefore the same sense is to be adopted in every other connection in which it occurs. This would be to suppose that the framers weighed only the force of single words, as phi- lologists or critics, and not whole clauses and objects, as states- men and practical reasoners. And yet nothing has been more common than to subject the Constitution to this narrow and mis- chievous criticism.^ Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having found in the Con- stitution a word used in some sense which falls in with their favorite theory of interpreting ifc, have made that the standard by which to measure its use in every other part of the instrument. They have thus stretched it, as it were, on the bed of Procrustes, lopping off its meaning when it seemed too large for their pur- poses, and extending it when it seemed too short. They have thus distorted it to the most unnatural shapes, and crippled where they have sought only to adjust its proportions according to their own opinions." ^ And he gives many instances where, in the na- tional Constitution, it is very manifest the same word is employed in different meanings. So that, while the rule may be sound as one of presumption merely, its force is but slight, and it must readily give way to a different intent appearing in the instru- ment. Where a constitution is revised or amended, the new provisions come into operation at the same moment that those they take the place of cease to be of force ; and if the new instrument re-enacts in the same words provisions which it supersedes, it is a reason- able presumption that the purpose was not to change the law in those particulars, but to continue it in uninterrupted operation. is certainly to be kept in view in tlie in- 397; Caditallader v. Harris, 76 111. 370; ■ terpretation of such a clause, since other- Moyer v. Slate Co., 71 Pa. St. 293. wise we do not ascertain the evil de- i Brien v. Williamson, 8 Miss. 14. If signed to be remedied, and perhaps are in one place in a statute the meaning of a . not able fully to understand and explain word or phrase is clear, it will generally the terms employed; but it is to be be taken in the same sense throughout looked at with a view to the real intent, the act. Rhodes v. Weldy, 20 N. E. Rep. rather than for the purpose of arbitrarily 461 (Ohio). restraining it. See Bishop, Law of Mar- ^ See remarks of Johnson, J,, in Ogden ried Women, §§ 18-20 and cases cited; v. Saunders, 12 Wheat. 213,290. McGinnis v. State, 9 Humph. 48; State ' Story on Const. § 454. And see V. Lash, 16 N. J. 380 ; s. c. 32 Am. Dec. Cherokee Nation v. Georgia, 5 Pet. 1, 19. CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 77 This is the rule in the case of statutes,^ and it sometimes becomes important, where rights had accrued before the revision or amend- ment took place. Its application to the case of an amended or revised constitution would seem to be unquestionable. Operation to be Prospective. We shall venture also to express the opinion that a constitution should operate prospectively only, unless the words employed show a clear intention that it should have a retrospective effect. This is the rule in regard to statutes, and it is " one of such obvious con- venience and justice, that it must always be adhered to in the con- struction of statutes, unless in cases where there is something on the face of the enactment putting it beyond doubt that the legis- lature meant it to operate retrospectively." ^ Retrospective legis- lation, except when designed to cure formal defects, or otherwise operate remedially, is commonly objectionable in principle, and apt to result in injustice ; and it is a sound rule of construction which refuses lightly to imply an intent to enact it. And we are aware of no reasons applicable to ordinai'y legislation which do not, upon this point, apply equally well to constitutions.* 1 Laude v. Chicago, &c. R. R. Co., 33 Wis. 640 ; Gilkey v. Cook, 60 Wis. 133 ; Blackwood v. Van Vleit, 30 Mich. 118. 2 Moon V. Durden, 2 Excb. 22. See Dash V. Van Kleek, 7 Johns. 477 ; Brown r. yVilcox, 22 Mies. 127 ; Price v. Mott, 52 Pa. St. 315 J Broom's Maxims, 28; post, p. 455 and note. 8 In Allbyer v. State, 10 Ohio St. 588, erty injured, but not taken, in course of public ienprovements. Folkenson v. Easton, 116 Pa. St. 523. See also State V. Thompson, 2 Kan. 432; Slack a. Maysville, &c. R. R. Co., 13 B. Monr. 1 ; State v. Macon County Court, 41 Mo. 453 ; N. C. Coal Co. v. G. C. Coal & Iron Co., 37 Md. 557. In Matter of Oliver Lee & Co.'s Bank, 21 N. Y. a question arose under the provision of 9, 12, Denio, J., says : " The rule laid the constitution that "all laws of a gener al nature shall have a uniform operation throughout the State." Another clause provided that all laws then in force, not inconsistent with the constitution, should continue in force until amended or re- pealed. Allbyer was convicted and sen- tenced to imprisonment under a crimes act previously in force applicable to Ham- ilton County only, and the question was. down in Dash v. Van Kleek, 7 Johns. 477, and other cases of that class, by which the courts are admonished to avoid, if possible, such an Interpretation as would give a statute a retrospective operation, has but a limited application, if any, to the construction of a constitution. When, therefore, we read in the provision under consideration, that the stockholders of every banking corporation shall be sub- whether that act was not inconsistent with ject to a certain liability, we are to attrib- the provision above quoted, and therefore repealed by It. The court held that the provision quoted evidently had regard to future and not to past legislation, and therefore was not repealed. A similar decision was made in State v. Barbee, 3 Ind. 258 ; Evans v. Phillipi, 117 Pa. St. 226; Pecot v. Police Jury, 6 Sou. Rep. 677 (La.). So as to the effect of a pro- vision allowing compensation for prop- ute to the language its natural meaning, without inquiring whether private inter- ests may not be prejudiced by such a sweeping mandate." The remark was obitfT, as it was found that enough ap- peared in the constitution to show clearly that it was intended to apply to existing, as well as to subsequently created, bank- ing institutions. 78 CONSTITUTIONAL LIMITATIONS. [OH. IV. Implioationa, The implications from the provisions of a constitution are some- times exceedingly important, and have large influence upon its construction. In regard to the Constitution of the United States the rule has been laid down, that where a general power is con- ferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also con- ferred.i The same rule has been applied to the State constitution, with an important modification, by the Supreme Court of Illinois. " That other powers than those expressly granted may be, and often are, conferred by implication, is too well settled to be doubted. Under every constitution the doctrine of implication must be resorted to, in order to carry out the general grants of power. A constitution cannot from its very nature enter into a minute specification of all the minor powers naturally and ob- viously included in it and flowing from the great and important ones which are expressly granted. It is therefore established as a general rule, that when a constitution gives a general power, or enjoins a duty, it also gives, by implication, every particular power necessary for the exercise of the one or the performance of the other. The implication under this rule, however, must be a necessary, not a conjectural or argumentative one. And it is further modified by another rule, that where the means for tlie exercise of a granted power are given, no other or different means can be implied, as being more effectual or convenient." ^ The rule applies to the exercise of power by all departments and all officers, and will be touched upon incidentally hereafter. Akin to this is the rule that " where the power is granted in general terms, the power is to be construed as coextensive with the terms, unless some clear restriction upon it is deducible [ex- pressly or by implication] from the context." ' This rule has been so frequently applied as a restraint upon legislative en- croachment upon the grant of power to the judiciary, that we shall content ourselves in this place with a reference to the cases collected upon this subject and given in another chapter.* Another rule of construction is, that when the constitution ^ Story on Const. § 430. See also provision that the counties shnll provide United States v. Fisher, 2 Cranch, 358 ; for their paupers will preclude a State McCulloch V. Maryland, 4 Wheat. 316 ; asylum for the poor. State v. Hallock, 14 Northwestern Fertilizing Co. «. Hyde Nev. 202 ; s. c. 33 Am. Rep. 559. Park, 70 111. 634. » Story on Const. §§ 424-42fi. See D« ■■= Field V. People, 3 HI .79, 83. See Paie County ;•. Jenks, 65 111. 275. Fletcher v. Oliver, 25 Ark. 289. In Ne- * See post, pp. 104-136 vada it has been held that a constitutional CH. IV.] CONSTEUCTION OF STATE CONSTITUTIONS. 79 defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislatiye interference to add to the condition, or to extend the penalty to other cases. On this ground it has been ' held by the Supreme Court of Maryland, that where the consti- tution defines the qualifications of an officer, it is not in the power of the legislature to change or superadd to them, unless the power to do so is expressly or by necessary implication conferred by the constitution itself.^ Other cases recognizing the same principle are referred to in the note.^ The Light which the Purpose to he accomplished may afford in Construction. The considerations thus far suggested are such as have no regard to extrinsic circumstances, but are those by the aid of which we seek to arrive at the meaning of the constitution from an examination of the words employed. It is possible, how- ever, that after we shall have made use of all the lights which the instrument itself affords, there may still be doubts to clear up and ambiguities to explain. Then, and only then, are we warranted in seeking elsewhere for aid. We are not to import difficulties into a constitution, by a consideration of extrinsic 1 Thomas v. Owens, 4 Md. 189. And for removing an officer : Lowe t;. Cora- see Barker v. People, 3 Cow. 686; Matter monwealth, 3 Met. (Ky.) 237; Brown v. of Dorsey, 7 Port. 293. Grover, 6 Bush, 1, as by enacting that ^ The legislature cannot add to the intoxication while discharging his duties constitutional qualifleations of voters: shall be deemed misfeasance in office, Eison V. Farr, 21 Ark. 161 ; St. Joseph, Com. v. Williams, 79 Ky. 42 ; but see &e. K. R. Co. V. Buchanan County Court, McComas v. Krug, 81 Ind. 327 ; nor 39 Mo. 485; State u. Williams, 5 Wis. change the compensation prescribed by 308 ; State «. Baker, 88 Wis. 71 ; Mon- the constitution : lijng v. Hunter, 65 roe V. Collins, 17 Ohio St. 665 ; State v. N. C. 603 ; see, also, on these questions, Symonds, 57 Me. 148 ; State v. Staten, 6 /jost, p. 332, note; nor provide for the choice Cold. 233 ; Davies «. McKeeby, 5 Nev. of officers a different mode from that 369 ; McCafferty v. Guyer, 59 Penn. St. prescribed by the constitution ; People 109 ; Quinn v. State, 35 Ind. 485 ; Clayton v. Raymond, 37 N. Y. 423 ; Devoy v. New V. Harris, 7 Nev. 64 ; Randolph v. Good, York, 35 Barb. 264 ; 22 How. Pr. 22ff; 3 W. Va. 551 ; nor of an officer : Feible- People v. Blake, 49 Barb. 9 ; People v. man v. State, 98 Ind. 516; nor shorten Albertson, 55 N. Y. 50; Opinions of Jus- the constitutional term of an office : How- tioes, 117 Mass. 603 ; State v. Goldstucker, ard ». State, 10 Ind. 99 ; Cotten k. Ellis, 40 Wis. 124; see joos(, p. 332 note. A legis- 7 Jones, N. C. 545; States. Askew, 48 Ark. lative extension of an elective office is 82; nor practically abolish the office by void as applied to incumbents. People repealing provision for salary : Reid v. v. McKinney, 52 N. Y. 374. Smoulter, 18 Atl. Rep. 445 (Pa.) ; nor ex- It is not unconstitutional to allow the tend the constitutional term : People v. governor to supply temporary vacancies Bull, 46 N. Y. 57 ; Goodin v. Thoman, 10 in offices which under the constitution Kan. 191 ; State v. Brewster, 44 Ohio St. are elective. Sprague v. Brown, 40 Wis. 589 ; but see Jordan v. Bailey, 87 Minn. 612. 174; nor add to the constitutional grounds 80 CONSTITUTIONAL LIMITATIONS. [CH. IV. facts, when none appear upon its face. If, however, a difficulty really exists, which an examination of every part of the instru- ment does not enable us to remove, there are certain extrinsic aids which may be resorted to, and which are more or less satis- factory in the light they afford. Among these aids is a contem- plation of the object to be aooomplished or the mischief designed to be remedied or guarded against by the clause in which the ambigu- ity is met with} " When we once know the reason which alone determined the will of the lawmakers, we ought to interpret and apply the words used in a manner suitable and consonant to that reason, and as will be best calculated to effectuate the intent. Great caution should always be observed in the application of this rule to particular given cases ; that is, w:e ought always to be certain that we do know, and have actually ascertained, the true and only reason which induced the act. It is never allowable to indulge in vague and uucertain conjecture, or in supposed rea- sons and views of the framers of an act, where there are none known with any degree of certainty." ^ The prior state of the law will sometimes furnish the clue to the real meaning of the ambiguous provision,^ and it is especially important to look into it if the constitution is the successor to another, and in the par- ticular in question essential changes have apparently been made.* Proceedings of the Constitutional Convention. When the inquiry is directed to ascertaining the mischief de- signed to be remedied, or the purpose sought to be accomplished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument.^ Where the proceedings clearly point out the purpose of the pro- vision, the aid will be valuable and satisfactory ; but where the question is one of abstract meaning, it will be difficult to derive from this source much reliable assistance in Interpretation. Every member of such a convention acts upon such motives and ' Alexander v. Worthington, 5 Md. Beatty, 32 Miss. 52 ; Bandel v. Isaac, 13 471 ; District Township o. Dubuque, 7 Md. 202 ; Story on Const. § 428. Iowa, 262. See Smith v. People, 47 N. * People v. Blodgett, 13 Mich. 127 Y. 330 ; People v. Potter, 47 N. Y. 875 ; 147. Ball V. Chadwick, 46 111. 28 ; Sawyer v. * Per Walworth, Chancellor, Coutant Insurance Co., 46 Vt. 697. v. People, 11 Wend. 511, 618, and Clark ». 2 Smith on Stat, and Const. Construe- People, 26 Wend. 599, 602 ; per Branson, tion, 634. See also remarks of Branson, J., People «. Purdy, 2 Hill, .SI ; People !'. J., in People v. Purdy, 2 Jlill, 35-37. N. Y. Central Railroad Co., 24 N. Y. 485. » Baltimore v. State, 15 Md. 376; See State v. Kennon, 7 Ohio St. 546; Henry v. Tilson, 19 Vt. 447 ; Hamilton Wisconsin Cent. R. R. Co. v. Taylor Co., V. St. Louis County Court, 15 Mo. 3 ; 52 Wis. 37 ; State v. Barnes, 8 Sou. Rep. People u. Gies, 25 Mich. 83 ; Serris v. 433 (Fla.). CH. IV.] CONSTEUCTIOK OF STATE CONSTITUTIONS. 81 reasons as influence him personally, and the motions and debates do not necessarily indicate the purpose of a majority of a conven- tion in adopting a particular clause. It is quite possible for a clause to appear so clear and unambiguous to the members of a con- vention as to require neither discussion nor illustration ; and the few remarks made concerning it in the convention might have a plain tendency to lead directly away from the meaning in the Edinds of the majority. It is equally possible for a part of the members to accept a clause in one sense and a part in another. And even if we were certain we had attained to the meaning of the convention, it is by no means to be allowed a controlling force, especially if that meaning appears not to be the one which the words would most naturally and obviously convey.^ For as the constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common untierstanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.2 These proceedings therefore are less conclusive of the proper construction of the instrument than are legislative proceedings of the proper construction of a statute ; since in the latter case it is the intent of the legislature we seek, while in the former we are endeavoring to arrive at the intent of the people through the discussions and deliberations of their repre- sentatives. The history of the calling of the convention, the causes which led to it, and the discussions and issues before the people at the time of the election of the delegates, will sometimes be quite as instructive and satisfactory as anything to be gathered from the proceedings^ of the convention.^ Ovntemporaneous and' Practical Construction. An important question which now suggests itself is this : How* far the contemporaneous interpretation, or the subsequent practi- cal construction of any particular provision of the constitution, is to have weight with the courts when the time arrives at which a judicial decision becomes necessary. Contemporaneous interpre- tation may indicate merely the understanding with which the people received it at the time, or it may be accompanied by acts ' Taylor v. Taylor, 10 Minn. 107. And * gtate v. Mace, 5 Md. 837 ; Manly v. gee Eakin v. Raub, 12 S. & E. 352 ; Aid- State, 7 Md. 135; Hills v. Chicago, 60 III ridge 0. Williams, 3 How. 1 ; State v. 86 ; Beardstown v. Virginia, 76 111. 34. Doron, 6 Ner. 899. » See People v. Harding, 53 Mich. 481. 6 82 CONSTITUTIONAL LIMITATIONS. [GH. IV. done in putting the instrument in operation, and which neces- sarily assume that it is to be construed in a particular way. In the first case it can have very little force, because the evidences of the public understanding, when nothing has been done under the provision in question, must always of necessity be vague and indecisive. But where there has been a practical construction, which has been acquiesced in for a considerable period, consider- ations in favor of adhering to this construction sometimes present themselves to the courts with a plausibility and force which it is not easy to resist. Indeed, where a particular construction has been generally accepted as correct, and especially when this has occurred contemporaneously with the adoption of the constitution, and by those who had opportunity to understand the intention of the instrument, it is not to be denied that a strong presumption exists that the construction rightly interprets the intention. And where this has been given by officers in the discharge of their official duty, and rights have accrued in reliance upon it, which would be divested by a decision that the construction was erro- neous, the argument ab ineonvenienti is sometimes allowed to have very great weight. The Supreme Court of the United States has had frequent occasion to consider this question. In Stuart v. Laird,^ decided in 1803, that court sustained the authority of its members to sit as circuit judges on the ground of a practical construction, com- mencing with the organization of the government. In Martin v. Hunter's Lessee,^ Justice Story, after holding that the appellate power of the United States extends to cases pend- ing in the State courts, and that the 25th section of the Judi- ciary Act, which authorized its exercise, was supported by the letter and spirit of the Constitution, proceeds to say : " Strong as this conclusion stands upon the general language of the Con- stitution, it may still derive support from other sources. It is an historical fact, that this exposition of the Constitution, ex- tending its appellate power to State courts, was, previous to its adoption, uniformly and publicly avowed by its friends, and admit- ted by its enemies, as the basis of their respective reasonings both in and out of the State conventions. It is an historical fact, that at tlie time when the Judiciary Act was submitted to the deliber- ations of the First Congress, composed, as it was, not only of men of great learning and ability, but of men who had acted a prin- cipal part in framing, supporting, or opposing that Constitution, the same exposition was explicitly declared and admitted by the 1 J Cranoh, 299. « 1 Wheat. 304, 351. See Story on Const. §§ 405-408. CH. IV.J CONSTRUCTION OE STATE CONSTITUTIONS. 83 friends and by the opponents of that system. It is an historical fact, that the Supreme Court of the United States have from time to time sustained this appellate jurisdiction in a great variety of cases, brought from the tribunals of many of the most important States in tlie Union, and that no State tribunal has ever breathed a judicial doubt on the subject, or declined to obey the mandate of the Supreme Court, until the present occasion. This weight of contemporaneous exposition by all parties, this acquiescence by enlightened State courts, and these judicial decisions of the Supreme Court through so long a period, do, as we think, place the doctrine upon a foundation of authority which cannot be shaken without delivering over the subject to perpetual and irremediable doubts." The same doctrine was subsequently sup- ported by Chief Justice Marshall in a case involving the same point, and in which he says that " great weight has always been attached, and very rightly attached, to contemporaneous exposi- tion." 1 In Bank of United States v. Halstead * the question was made, whether the laws of the United States authorizing the courts of the Union so to alter the form of process of execution used in the Supreme Courts of the States in September, 1789, as to subject to execution lands and other property not thus subject by the State laws in force at that time, were constitutional ; and Mr. Justice Thompson, in language similar to that of Chief Justice Marshall in the preceding case, says : " If any doubt existed whether the act of 1792 vests such power in the courts, or with respect to its constitutionality, the practical construction given to it ought to have great weight in determining both questions." And Mr, Jus- tice Johnson assigns a reason for this in a subsequent case: " Every candid mind will admit that this is a very different thing from contending that the frequent repetition of wrong will create a right. It proceeds upon the presumption that the contempora- ries of the Constitution have daims to our deference on the ques- tion of right, because they had the best opportunities of informing themselves of the understanding of the framers of the Constitu- tion, and of the sense put upon it by the people when it was adopted by them." * Like views have been expressed by Chief Justice Waite in a recent decision.* Great deference has been paid in all cases to the action of the 1 Cohens I'. Virginia, 6 "Wheat. 264, 418. * Minor v. Happersett, 21 Wall. 162. 2 10 Wheat. 51, 6.3. To like effect is Ex parte Reynolds, 1-2 » Ogden J!. Saunders, 12 Wheat. 290. S. W. Rep. 570 (Ark.). And see Collins See Pike v. Megoun, 44 Mo. 491 ; State v. v. Henderson, 11 Bush, 74, 92. Parkinson, 5 Nev. 15. 84 CONSTITUTIONAL LIMITATIONS. [CH. IV. executive department, where its officers have been called upon, under the responsibilities of their official oaths, to inaugurate a new system, and where it is to be presumed they have carefully and conscientiously weighed all considerations, and endeavored to keep within the letter and the spirit of the Constitution. If the question involved is really one of doubt, the force of their judgment, especially in view of the injurious consequences that may result from disregarding it, is fairly entitled to turn the scale in the judicial mind.^ Where, however, no ambiguity or doubt appears in the law, we think the same rule obtains here as in other cases, that the court should confine its attention to the law, and not allow extrinsic circumstances to introduce a difficulty where the language is plain. To allow force to a practical construction in such a case would be to suffer manifest perversions to defeat the evident, purpose of the lawmakers. " Contemporary construction . . . can never abrogate the text ; it can never fritter away its obvious sense ; it can never narrow down its true limitations ; it can never en- large its natural boundaries." ^ While we conceive this to be the true and only safe rule, we shall be obliged to confess that some of the cases appear, on first reading, not to have observed these limitations. In the case of Stuart v. Laird,^ above referred to, ' Union Insurance Co. v. Hoge, 21 How. government in its application to a politi- 35, 66 ; Edward's Lessee u. Darby, 12 cal question, the courts will not only give Wheat 206 ; Hughes v. Hughes, 4 T. B. great consideration to their action, but Monr. 42; Chambers v. Fisk, 22 Tex. will generally follow the construction im- C04 ; Britton v. Ferry, 14 Mich. 53 ; Bay plicitly. People v. Supervisors of La City V. State Treasurer, 23 Mich. 499 ; Salle, 100 111. 495. The passage of an Westbrook v. Miller, 56 Mich. 148 ; act by the first State legislature is a con- Plummer v. Plummer, 37 Miss. 185 ; Bur- temporary interpretation of a constitu- gess V. Pue, 2 Gill, 11 ; State v. Mayhew, tional clause in pari materia of much 2 Gill, 487; Baltimore w. State, 15 Md. 376; weight. Cooper Mf'g Co. v. Ferguson, Coutant V. People, 11 Wend. 511 ; Peo- 113 U. S. 727 ; People v. Wright, 6 Col! pie V. Dayton, 56 N. Y. 367 ; Farmers' 92. Where under color of authority long and Mechanics' Bank v. Smith, 3 S. & B practical construction has sanctioned cer- 63; Norris v. Clyraer, 2 Pa. St. 277; tain appointments by the legislature, it Moers v. City of Reading, 21 Pa. St. will control. Hovey v. State, 21 N. E. 188; Washington v. Page, 4 Cal. 888; Rep. 890 (Ind.) ; Bifrgs v. McBride, 21 Surgett u. Lapice, 8 How. 48; Bissell o. Pac. Rep.878(Oreg.). The executive con- I'enrose, 8 How. 317 ; Troup v. Haight, struction of treaties is entitled to a sim- Hopk. 239 ; United States v. Gilmore, 8 ilar respect. Castro v. De Uriarte, 16 Fed. Wall. 330; Brown w. United States, 113 Rep. 93. U. S. 568 ; Hedgecock v. Davis, 64 N. C. ^ Story on Const. § 407. And see 650 ; Lafayette, &c. R. R. Co. v. Geiger, Evans v. Myers, 25 Pa. St. 116 ; Sadler 34 Ind. 185 ; Bunn v. People, 45 II!. 397 ; v. Langham, 34 Ala. 311 ; Barnes v. First Scanlan v. Childs, 33 Wis. 663 ; Faribault Parish in Falmouth, 6 Mass. 401 ; Union ? V. Misener, 20 Minn. 396 ; State ». Glenn, Pacific R. R. Co. v. United States', 10 Ct. 18 Nev. 34 ; State v. Kelsey, 44 N. J. L. of CI. Rep. 648 ; s. c. in error, 91 U. s! 1. Where the constitution has been con- 72. «trued by the political departments of the ' 1 Cranoh, 299. CH. rv.] CONSTRUCTION OF STATE CONSTITUTIONS. 85 the practical construction was regarded as conclusive. To the objection that the judges of the Supreme Court had no right to sit as circuit judges, the court say : " It is sufficient to observe that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construc- tion. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course the question is at rest, and ought not now to be disturbed." This is certainly very strong language ; but language very similar in character was used by the Supreme Court of Massachusetts in one case where large and val" uable estates depended upon a particular construction of a statute, and very great mischief would follow from changing it. The court said that, •* although if it were now res Integra, it might be very difficult to maintain such a construction, yet at this day th6 argu- ment ab inconvenienti applies with great weight. We cannot shake a principle which in practice has so long and so extensively prevailed. If the practice originated in error, yet the error is now so common that it must have the force of law. The legal ground on which this provision is now supported is, that long and contin- ued usage furnishes a contemporaneous construction which must prevail over the mere technical import of the words." ^ Language nearly as strong was also used by the Supreme Court of Maryland, where the point involved was the possession of a certain power by the legislature, which it had constantly exercised for nearly sev- enty years.* It is believed, however, that in each of these cases an examina- tion of the Constitution left in the minds of the judges sufficient doubt upon the question of its violation to warrant their looking elsewhere for aids in interpretation, and that the cases are not in conflict with the general riile as above laid down. Acquiescence for no length of time can legalize a clear usurpation of power, where the people have plainly expressed their will in the Consti'^ tution, and appointed judicial tribunals to enforce it. A power is frequently yielded to merely because it is claimed, and it may 1 Rogers v. Goodwin, 2 Mass. 475. be treated by a State court aa open to See also Fall v. Hazelrigg, 45 Ind. 576 ; discussion after the notes had practically Scanlan o. Childs, 33 Wis. 663. constituted the currency of the country 2 State V. Mayhew, 2 Gill, 487. In for five years. At a still later day, how- Essex Co. V. Pacific Mills, 14 Allen, 389, ever, the judges of the Supreme Court oi the Supreme Court of Massachusetts ex- the United States held these acts void, pressed the opinion that the constitution- though they afterwards receded from this ality of the acts of Congress making position. treasury notes a legal tender ought not to CONSTITUTIONAL LIMITATIONS. [CH. IV. be exercised for a long period, in violation of the constitutional prohibition, without the mischief which the Constitution was de- signed to guard against appearing, or without any one being suffi- ciently interested in the subject to raise the question ; but these circumstances cannot be allowed to sanction a clear infraction of the Constitution.! We think we allow to contemporary and prac- tical construction its full legitimate force when we suffer it, where it is clear and uniform, to solve in its own favor the doubts which arise on reading the instrument to be construed.^ 1 See further, on this subject, the case of Sadler v. Langham, 34 Ala. 311, 334 ; People V, Allen, 42 N. Y. 378 ; Brown ». State, 6 Col. 625 ; Hahn v. United States, 14 Ct. of CI. 305 ; Swift «. TTnited States, 14 Ct. of CI. 481. Practical acquiescence in a supposed unconstitutional law is en- titled to much greater weight when the defect which is pointed out relates to mere forms of expression or enactment than when it concerns the substance of legislation ; and 'if the objection is purely technical, long acquiescence will be con- clusive against it. Continental Imp. Co. V. Phelps, 47 Mich. 299. 2 There are cases which clearly go f urtlier than any we have quoted, and which sustain legislative action which they hold to be usurpation, on the sole ground of long acquiescence. Thus in Brigham v. Miller, 17 Ohio, 446, the ques- tion was. Has the legislature power to grant divorces ? The court say : " Our legislature have assumed and exercised this power for a period of more than forty years, although a clear and palpable as- sumption of power, and an encroachment upon the judicial department, in violation of the Constitution. To deny this long- exercised power, and declare all the con- sequences resulting from it void. Is preg- nant with fearful consequences. If it affected only the rights of property, we should not hesitate ; but second marriages have been contracted and children born, and it would bastardize all these, although born under the sanction of an apparent wedlock, authorized by an act of the legis- lature before they were born, and in con- sequence of which the relation was formed which gave them birth. On account of these children, and for them only, we hesitate. And in view of this, we are constrained to content ourselves with simply declaring that the exercise of the power of granting divorces, on the part of the legislature, is unwarranted and un- constitutional, an encroachment upon the duties of the jndiciary, and a striking down of the dearest rights of individuals, without authority of law. We trust we have said enough to vindicate the Consti- tution, and feel confident that no depart- ment of State has any disposition to violate it, and that the evil will cease." So in Johnson v. Joliet & Chicago Bailroad Co., 23 111. 202, 207, the question was whether railroad corporations could be created by special law, without a special declaration by way of preamble that the object to be accomplished could not be attained by general law. The court say : " It is now too late to make this objection, since, by the action of the general assembly under this clause, special acts have been so long the order of the day and the ruling pas- sion with every legislature which has con- vened under the Constitution, until their acts of this description fill a huge and misshapen volume, and important and valuable rights are claimed under them. The clause has been wholly disregarded, audit would now produce far-spread ruin to declare such acts unconstitutional and void. It is now safer and more just to all parties to declare that it must be un- derstood that, in the opinion of the gen- eral assembly at the time of passing the special act, its object could not be attained under the general law, and this without any recital by way of preamble, as in the act to incorporate the Central Railroad Company. That preamble was placed there by the writer of this o tinion, and a strict compliance with this clause of the Constitution would have rendered it ne- cessary in every subsequent act. But the legislature, in their wisdom, have thought differently, and have acted diff'erently, until now our special legislation and its mischiefs are beyond recovery or rem- edy." These cases certainly presented CH. IV.] CONSTEUOTION OF STATE CONSTITUTIONS. 87 Unjust Provisions. We liave elsewhere expressed the opinion that a statute cannot be declared void on the ground solely that it is repugnant to a supposed general intent or spirit which it is thought pervades or lies concealed in the Constitution, but wholly unexpressed, or because, in the opinion of the court, it violates fundamental rights or principles, if it was passed in the exercise of a power which the Constitution confers.^ Still less will the injustice of a constitutional provision authorize the courts to disregard it, or indirectly to annul it by construing it away. It is quite possi- ble that the people may, under the influence of temporary preju- very strong motives for declaring the law to be what it was not ; but it would have been interesting and useful if either of these learned courts had enumerated the evils that must be placed in the opposite scale when the question is whether a con- stitutional rule shall be disregarded ; not the least of which is, the encouragement of a disposition on the part of legislative bodies to set aside constitutional restric- tions, in the belief that, if the unconstitu- tional law can once be put in force, and large interests enlisted under it, the courts will not venture to declare it void, but will submit to the usurpation, no matter how gross and daring. We agree with the Supreme Court of Indiana, that, in con- struing constitutions, courts have nothing to do with the argument ab inconvenienti, and should not " bend the Constitution to suit the law of the hour : " Greencastle Township v. Black, 6 Ind. 5S7, 565 ; and with Branson, Cb. J., in what he says in Oakley v. Aspinwall, 3 N. Y. 547, 568: "It is highly probable that inconveniences will result from following the Constitution as it is written. But that consideratibn can have no force with me. It is not for us, but for those who made ^he instru- ment, to supply its defects. If the legis- lature or the courts may take that office upon themselves, or if, under color of con- struction, or upon any other specious ground, they may depart from that which is plainly declared, the people may well despair of ever being able to set any boundary to the powers of the govern- ment. Written constitutions will be more than useless. Believing as I do that the success of free institutions depends upon a rigid adherence to the fundamental law, I have never yielded to considerations of expediency in expounding it. There is al- ways some plausible reason for latitudina- rian constructions which are resorted to for the purpose of acquiring power ; some evil to be avoided or some good to be at- tained by pushing the powers of the gov- ernment beyond their legitimate boundary. It is by yielding to such influences that constitutions are gradually undermined and finally overthrown. My rule has ever been to follow the fundamental law as it is written, regardless of consequences. If the law does not work well, the people can amend it ; and inconveniences can be borne long enough to await that pro- cess. But if the legislature or the courts undertake to cure defects by forced and unnatural constructions, they inflict a wound upon the Constitution which noth- ing can heal. One step taken by the legislature or the judiciary, in enlarging the powers of the government, opens the door for another which will be sure to follow ; and so the process goes on until all respect for the fundamental law is lost, and the powers of the government are just what those in authority please to call them." See also Encking v. Simmons, 28 Wis. 272. Whether there may not be circumstances under which the State can be held justly estopped from alleging the invalidity of its own action in apportion- ing the political divisions of the State, and imposing burdens on citizens, where such action has been acquiesced in for a considerable period, and rights have been acquired through bearing the burdens under it, see Rumsey v. People, 19 N. Y. 41; People v. Maynard, 15 Mich. 470; Eneeland v. Milwaukee, 15 Wis. 464. ^ See post, p. 204, and cases referred to in notes. 88 CONSTITUTIONAL LIMITATIONS. [CH. IV. dice, or a mistaken view of public policy, incorporate provisions in their charter of government, infringing upon the proper rights of individual citizens or upon principles which ought ever to be regarded as sacred and fundamental in republican government; and it is also possible that obnoxious classes may be unjustly dis- franchised. The remedy for such injustice must be found in the action of the people themselves, through an amendment of their work when better counsels prevail. Such provisions, when free from doubt, must receive the same construction as any other. We do not say, however, that if a clause should be found in a constitution which should appear at first blush to demand a coiv- struction leading to monstrous and absurd consequences, it might not be the duty of the court to question and cross-question such clause closely, with a view to discover in it, if possible, some other meaning more consistent with the general purposes and aims of these instruments. When such a case arises, it will be time to consider it.^ Duty in Case of Doubt. But when all the legitimate lights for ascertaining the mean- ing of the constitution have been made use of, it may still happen that the construction remains a matter of doubt. In such a case it seems clear that every one called upon to act where, in his opinion, the proposed action would be of doubtful constitution- ality, is boimd upon the doubt alone to abstain from acting. Whoever derives power from the constitution to perform any public function is disloyal to that instrument, and grossly dere- lict in duty, if he does that which he is not reasonably satisfied the constitution permits. Whether the power be legislative, ex- ecutive, or judicial, there is manifest disregard of constitutional and moral obligation by one who, having taken an oath to ob- serve that instrument, takes part in an action which he cannot say he believes to be no violation of its provisions. A doubt of the constitutionality of any proposed legislative enactment should in any case be reason sufficient for refusing to adopt it ; and, if legislators do not act upon this principle, the reasons upon which are based the judicial decisions sustaining legislation in very many cases will cease to be of force. Directory and Mandatory Provisions. The important question sometimes presents itself, whether we are authorized in any case, when the meaning of a clause of the 1 McMullen v. Hodge, 5 Tex. 34. See Cincinnati, 21 Ohio St. 14 ; Bailey v. Clarke v. Irwin, 5 Nev. Ill; Walker u. Commonwealth, 11 Bush, 688. CH. IV.] CONSTBUCTION OF STATE CONSTITUTIONS. 89 Constitution is arrived at, to give it such practical construction as will leave it optional with the department or officer to which it is addressed to obey it or not as he shall see fit. In respect to statutes it has long been settled that particular provisions may be regarded as directory merely ; by which is meant that they are to be considered as giving directions which ought to be followed, but not as so limiting the power in respect to which the directions are given that it cannot effectually be exercised without observing them. The force of many of the decisions on this subject will be readily assented to by all ; while others are sometimes thought to go to the extent of nullifying the intent of the legislature in essen- tial particulars. It is not our purpose to examine the several cases critically, or to attempt — whlat we deem impossible — to reconcile them all ; but we shall content ourselves with quoting from a few, with a view, if practicable, to ascertaining some line of principle upon which they can be classified. There are cases where, whether a statute was to be regarded as merely directory or not, was made to depend upon the employing or failing to employ negative words plainly importing that the act should be done in a particular manner or time, and not other- wise?- The use of such words is often conclusive of an intent to impose a limitation ; but their absence is by no means equally conclusive that the statute was not designed to be mandatory .^ Lord Mansfield would have the question whether mandatory or not depend upon whether that which was directed to be done was or was not of the essence of the thing required.^ The Supreme Court of New York, in an opinion afterwards approved by the Court of Appeals, laid down the rule as one settled by authority, that " statutes directing the mode of proceeding by public officers are directory, and are not regarded as essential to the validity of the proceedings themselves, unless it be so declared in the statute." * This rule strikes us as very general, and as likely to include within its scope, in m&ny cases, things which are of the very essence of the proceeding. The questions in Uiat case were questions of irregularity under election laws, not in any way hin- dering the complete expression of the will of the electors ; and the court was doubtless right in holding that the election was not to be avoided for a failure in the officers appointed for its conduct to comply in all respects with the directions of the statute there in question. The same court in another case say : " Statutory 1 Slay ton v. Hulings, 7 Ind. 144 ; King " District Townsliip v. Dubuque, 7 V. Inhabitants of St. Gregory, 2 Ad. & El. Iowa, 262, 284. 99 ; King v. Inhabitants of Hipswell, 8 ' Rex v. Locksdale, 1 Burr. 447. B. & C. 466. * People v. Cook, 14 Barb. 290 ; s. a 8 N. Y. 67. 90 CONSTITUTIONAL LIMITATIONS. [CH. IV. requisitions are deemed directory onlj wheu they relate to some immaterial matter, where a compliance is a matter of convenience rather than of substance." ^ The Supreme Court of Michigan, in a case involving the validity of proceedings on the sale of land for taxes, laid down the rule that " what the law requires to be done for the protection of the taxpayer is mandatory, and cannot be regarded as directory merely." ^ A similar rule has been rec- ognized in a ease in Illinois. Commissioners had been appointed to ascertain and assess the damage and recompense due to the owners of land which might be taken, on the real estate of the persons benefited by a certain local improvement, in proportion as nearly as might be to the benefits resulting to each. By the statute, when the assessment was completed, the commissioners were to sign and return the same to the city council within forty days of their appointment. This provision was not complied with, but return was made afterwards, and the question was raised as to its validity when thus made. In the opinion of the court, this question was to be decided by ascertaining whether any advantage would be lost, or right destroyed, or benefit sacri- ficed, either to the public or to any individual, by holding the provision directory. After remarking that they had held an assessment under the general revenue law, returned after the time appointed by law, as void, because the person assessed would lose the benefit of an appeal from the assessment,^ they say of the statute before the court : " There are no negative words used declaring that the functions of the commissioners shall cease after the expiration of the forty days, or that they shall not make 1 People o. Schermerhorn, 19 Barb, of positive prohibition.' Pearse v Mor- 540, 558. If a statute imposes a duty and riee, 2 Ad. & El. 96." Per Sharswood J gives the means of performing that duty, in Bladen v. Philadelphia 60 Pa 'st' it must le held to be mandatory. Veazie 464, 466. And see Pittsburg v. Coursin; «. China, 50 Me 518. " It would not per- 74 Pa. St. 400; Kennedy ». Sacra! haps be easy to lay down any general rule mento, 19 Fed. Rep. 580 Under a stat- as to when the provisions of a statute are nte providing that a court may appoint merely directory, and when mandatory three commissioners to determine public or imperative. Where the words are rights, « may " is mandatory, and parties affirmative, and relate to the manner in cannot agree that less than three shaU which power or jurisdiction vested in a act. Monmouth w. Leeds, 76 Me 28 public officer or body is to be exercised, a dark v. Crane, 5 Mich 150 154 and not to the limits of the power or juris- See also Young u. Joslin 13 R l' 675- diction itself, they may, and often have Shawnee County ». Carter 2 Kan 115 been, construed to be directory ; but neg- In Life Association ... Board of Assessors" ative words, which go to the power or 49 Mo. 512, it is held that a constitutional jurisdiction itself, have never, that I am provision that "all property subject to aware of, been brought within that cate- taxation ought to be taxed in proportion gory A clause is directory,' says Taun- to its value " is a prohibition against its ton, J., ' when the provisions contain mere being taxed in any other mode and the matter of discretion and no more ; but word ought is mandatory. ' not so when they are followed by words » Marsh v. Chesnut 14 111 223 CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 91 their return after that time ; nor have we been able to discover the least right, benefit, or advantage which the property owner could derive from having the return made within that time, and not after. No time is limited and made dependent on that time, within which the owner of the property may apply to have the assessment reviewed or corrected. The next section requires the clerk to give ten days' notice that the assessment has been re- turned, specifying the day when objections may be made to the assessment before the common council by parties interested, which hearing may be adjourned from day to day ; and the com- mon council is empowered in its discretion to confirm or annul the assessment altogether, or to refer it back to the same commis- sioners, or to others to be by them appointed. As the property owner has the same time and opportunity to prepare himself to ob- ject to the assessment and have it corrected, whether the return be made before or after the expiration of the forty days, the case differs from that of Chesnut v. Marsh,' at the very point on which that case turned. Nor is there any other portion of the chapter which we have discovered, bringing it within the principle of that case, which is the well-recognized rule in all the books." ^ The rule is nowhere more clearly stated than by Chief Justice Shaw, in Torrey v. Milbury,^ which was also a tax case. " In considering the various statutes regulating the assessment of taxes, and the measures preliminary thereto, it is not always easy to distinguish which are conditions precedent to the legality and validity of the tax, and which are directory merely, and do not constitute conditions. One rule is very plain and well set- tled, that all those measures that are intended for the security of the citizen, for ensuring equality of taxation, and to enable every one to know with reasonable certainty for what polls and for what real and personal estate he is taxed, and for what all those 1 j4 jij 223. to I'ol'l ^^y requirement of a law unneces- 2 Wheeler v. Chicago, 24 III. 105, 108. sary to be complied with, unless it.be 8 21 Pick 64 67. We commend in the manifest the legislature did not intend to same connection the views of Lewis, Oh. impose the consequence which would nat- J. in Corbett v. Bradley, 7 Nev. 108 : urally follow from a non-compliance, or " When any requirement of a statute is which would result from holdmg the re- held to be directory, and therefore not quirement mandatory or mdispensable. material to be followed, it is upon the as- If it be clear that no penalty was m- sumption that the legislature itself so tended to be imposed for a non-oompli- considered it, and did not make the right ance, then, as a matter of course, it is conferred dependent upon a compliance but carrying out the will of the legisla- with the form prescribed for securing it. ture to declare the statute in that respect It is upon this principle that the courts to be simply directory. But if there be often hold the time designated in a stat- anything to indicate the contrary, a full ute, where a tiling is to be done, to be di- compliance with it must be enforced.' rectory. No court certainly has the right See also Hurford v. Omaha, 4 Neb. 336. 92 CONSTITUTIONAL LIMITATIONS. [CH. IV. ■who are liable with him are taxed, are conditions precedent ; and if they are not observed, he is not legally taxed ; and he may resist it in any of tlie modes authorized by law for contesting the validity of the tax. But many regulations are made by statutes designed for the information of assessors and officers, and in- tended to promote method, system, and uniformity in the modes of proceeding, a compliance or non-compliance with which does in no respect affect the rights of taxpaying citizens. These may be considered directory; officers may be liable to legal animadversion, perhaps to punishment, for not observing them ; but yet their ob- servance is not a condition precedent to the validity of the tax." We shall quote further only from a single other case upon this point. The Supreme Court of Wisconsin, in considering the va- lidity of a statute not published within the time required by law, " understand the doctrine concerning directory statutes to be this : that where there is no substantial reason why the thing to be done might not as well be done after the time prescribed as before, no presumption that by allowing it to be so done it may work an injury or wrong, nothing in the act itself, or in other acts relating to the same subject-matter, indicating that the legislature did not intend that it should rather be done after the time prescribed than not to be done at all, there the courts assume that the intent was, that if not done within the time prescribed it might be done after- wards. But when any of these reasons intervene, then the limit is established." ^ These cases perhaps sufficiently indicate the rules, so far as any of general application can be declared, which are to be made use of in determining whether the provisions of a statute are manda- tory or directory. Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly, and prompt conduct of the business, and by a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as manda- tory ; and if the act is performed, but not in the time or in the precise mode indicated, it may still be sufficient, if that which is done accomplishes the substantial purpose of the statute.* But 1 State V. Lean, 9 Wig. 279, 292. See and the public or third persons hare a further, for the views of this court on the claim dejure that the power shall be ex- subject here discussed, Wendel v. Dur- ercised. And see Wiley v. Flournoy, 30 bin, 26 Wis. 390. The general doctrine of Ark. 609 j State Auditor v. Jackson Co., the cases above quoted is approved and 65 Ala. 142. followed in French «. Edwards, 13 Wall. " The following, in addition to those 606. In Low i;. Dunham, 61 Me. 666, a cited, are some of the cases in this coun- statute is said to be mandatory where try in which statutes have been declared public interests or rights are concerned, directory only : Odiorne v. Kand, 69 N. H. CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 93 this rule presupposes that no negative words are employed in the statute which expressly or by necessary implication forbid the doing of the act at any other time or in any other manner than as directed. Even as thus laid down and restricted, the doctrine is one to be applied with much circumspection ; for it is not to be denied that the courts have sometimes, in their anxiety to sustain the proceedings of careless or incompetent officers, gone very far in substituting a judicial view of what was essential for that de- clared by the legislature.^ But the courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and man- datory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done ; and they must then be regarded in the light of limi- tations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules by which all departments of the government must at all times shape their conduct ; and if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument, and usurping the proper province of ordi- nary legislation. We are not therefore to expect to find in a con- stitution provisions which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in an instrument which, for a time at least, is to control alike -the gov- ernment and the governed, and to form a standard by which is to 504 ; Pond f. Negus, 3 Mass. 230 ; Wil- New Orleans v. St. Romes, 9 La. An. 573 ; liams V. School District, 21 Pick. 75 ; Edwards v. James, 13 Tex. 62 ; State v. City of Lowell v. Hadley, 8 Met. 180 ; Click, 2 Ala. 26 ; Savage v. Walshe, 26 Holland v. Osgood, 8 Vt 276 ; Corliss v. Ala. 620 ; Sorchan v. Brooklyn, 62 N. Y. Corliss, 8 Vt. 873 ; People v. Allen, 6 389 ; People v. Tompkins, 64 N. Y. 53 ; Wend. 486 ; Marchant v. Langworthy, 6 Limestone Co. v. Rather, 48 Ala. 433 ; Hill, 646 ; Ex paHe Heath, 3 Hill, 42 ; Webster v. French, 12 111. 302 ; McKune People V. HoUey, 12 Wend. 481 ; Jackson v. Weller, 11 Cal. 49 ; State v. Co. Com- ». Young, 5 Cow. 269 ; Striker d. Kelley, missioners of Baltimore, 29 Md. 516; 7 Hill, 9 ; People v. Peck, 11 Wend. 604 ; Fry v. Booth, 19 Ohio St. 25; Whalin i>. Matter of Mohawk and Hudson Railroad Macomb, 76 111. 49 ; Hurford v. Omaha, 4 Co., 19 Wend. 135 ; People v. Runkel, 9 Neb. 336 ; Lackawana Iron Co. v. Little Johns. 147 ; Gale v. Mead, 2 Denio, 160 ; Wolf, 38 Wis. 152; R. R. Co. ». Warren Doughty V. Hope, 3 Denio, 249 ; Elmen- Co., 10 Bush, 711 ; Grant v. Spencer, I dorfi).Mayor,&c. of NewYork,25Wend. Mont. 136. The list might easily be 692 ; Thames Manufacturing Co. v. Lath- largely increased. rop, 7 Conn. 550; Colt v. Eves, 12 Conn. i See upon this subject the remarks 243*; People v. Doe, 1 Mich. 451 ; Parks of Mr. Sedgwick in his work on Statutory V. Goodwin, 1 Doug. (Mich.) 56 ; Hickey and Constitutional Law, pi 375, and those V. Hinsdale, 8 Mich. 267; People v. Hart- of HtAhard, J., in Briggs v. Georgia, 15 ■well, 12 Mich. 508; State v. McGinley, Vt.61. Also see Dryfus v. Dridges, 46 4 In'd. 7 ; Stayton v. Hulings, 7 Ind. 144 ; Miss. 247. 94 CONSTITUTIONAL LIMITATIONS. [CH. IV. be measured the power which can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only ; ^ and we impute to the people a want of due appre- ciation of the purpose and proper province of such an instrument, when we infer that such directions are given to any other end. Especially when, as has been already said, it is but fair to pre- sume that the people in their constitution have expressed them- selves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication.^ pit-t-c^-^rV ' There ai-e some cases, however, where the doctriiBxli "directory statutes'^has been applied to constitutional provisions ; but they are so plainly at variance with the weight of authority upon the precise points considered that we feel warranted in saying that the judicial decisions as they now stand do not sanction the ap- plication. In delivering the opinion of the New York Court of Appeals in one case, Mr. Justice Willard had occasion to con- sider the constitutional provision, that on the final passage of a bill the question shall be taken by ayes and noes, which shall be duly entered upon the journals ; and he expressed the opinion that it was only'directory 'to the legislature.^ The remark was obiter dictum, as the court had already decided that the provis- ion had been fully complied with ; and those familiar with the reasons which have induced the insertion of this clause in our constitutions will not readily concede that its sole design was to establish a mere rule of order for legislative proceedings which might be followed or not at discretion. Mr. Chief Justice Thur- man, of Qhio, in a case not calling for a discussion of the sub- ject, has considered a statute whose validity was assailed on the ground that it was not passed in the mode prescribed by the con- stitution. " By the term mode" he says, " I do not mean to in- clude the authority in which the lawmaking power resides, or the number of votes a bill must receive to become a law. That ' See State v. Johnson, 26 Arlc. 281. partments of government, it ia difficult to ^ Wolcott ». Wigton, 7 Inrt. 44 ; per comprehend how its provisions can be Branson, J., in People v. Purdy, 2 Hill, regarded as merely directory." Nicholson, 31 ; Greencastle Township v. Black, 6Ind. Ch. J., in Cannon v. Mathes, 8 Heisk. 504 566 ; Opinions of Judjjes, 18 Me. 458. See 517. Unless expressly permissive, con- People ». Lawrence, 36 Barb. 177 ; State stitutional provisions are mandatory. V. Jolinson, 26 Ark. 281 ; State u. Glenn, Varney v. Justice, 86 Ky. 596. 18 Nev. 34. " The essential nature and • People v. Supervisors of Chenango object of constitutional law being restric- 8 N. Y. 317. tive upon the powers of the several de- OH. IV.J CONSTEUCTION OF STATE CONSTITUTIONS. 95 the power to make laws is vested in the assembly alone, and that no act has any force that was not passed by the number of votes required by the constitution, are nearly, or quite, self-evident propositions. These essentials relate to the authority by which, rather than the mode in which, laws are to be made. Now to secure the careful exercise of this power, and for other good rea- sons, the constitution prescribes or recognizes certain things to be done in the enactment of laws, which things form a course or mode of legislative procedure. Thus we find, inter alia, the pro- vision before quoted that every bill shall be fully and distinctly read on three different days, unless, in case of urgency, three- fourths of the house in which it shall be pending shall dispense with this rule. This is an important provision without doubt, but, nevertheless, there is much reason for saying that it is merely directory in its character, and that its observance by the assembly is secured by their sense of duty and official oaths, and not by any supervisory power of the courts. Any other construction, we incline to think, would lead to very absurd and alarming conse- quences. Jf it is in the power of every court (and if one has the power, every one has it) to inquire whether a bill that passed the assembly was ' fully ' and ' distinctly ' read three times in each house, and to hold it invalid if, upon any reading, a word was ac- cidentally omitted, or the reading was indistinct, it would obviously be impossible to know what is the statute law of the State. Now the requisition that bills shall be fully and distinctly read is just as imperative as that requiring them to be read three times ; and as both relate to the mode of procedure merely, it would be diffi- cult to find any sufficient reason why a violation of one of them would be less fatal to an act than a violation of the other." ^ A requirement that a law shall be read distinctly, whether ^^mandatory 'or directory, is, from the very nature of the case, ad- dressed to the judgment of the legislative body, whose decision as to what reading is sufficiently distinct to be a compliance can- not be subject to review. But in the absence of authority to the contrary, we should not have supposed that the requirement of three successive readings on different days stood upon the same footing.^ To this extent a definite and certain rule is capable of being, and has been, laid down, which- can be literally obeyed ; and the legislative body cannot suppose or adjudge it to have 1 Miller «. State, 3 Ohio St. 475, 483. = See People v. Campbell, 8 111. 466 ; The provision for three readings on sep- McCuUoeh v. State, U Ind. 424; Cannon arate days does not apply to amendments v. Mathes, 8 Heisk. 604 ; Spangler v. Jao- made in the progress of the bill through oby, 14 111. 297 ; People v. Starne, 85 111. the houses. People v. Wallace, 70 111. 680. 121 ; Kyan v. Lynch, 68 111. 160. 96 CONSTITUTIONAL LIMITATIONS. [OH. IV. been done if the fact is otherwise. The requirement has an im- portant purpose, in making legislators proceed in their action with caution and deliberation ; and there cannot often be diffi- culty in ascertaining from the legislative records themselves if the constitution has been violated in this particular. There is, therefore, no inherent difficulty in the question being reached and passed upon by the courts in the ordinary mode, if it is decided that the constitution intends legislation shall be reached through the three readings, and not otherwise. The opinion above quoted was recognized as law by the Su- preme Court of Ohio in a case soon after decided. In that case the court proceed to say : " The . . . provision . . . that no bill shall contain more than one subject, which shall be clearly ex- pressed in its title, is also made a permanent rule in the introduc- tion and passage of bills through the houses. The subject of the bill is required to be clearly expressed in the title for the purpose ' of advising members of its subject, when voting in cases in which the reading has been dispensed with by a two-thirds vote. The provision that a bill shall contain but one subject was to prevent combinations by which various and distinct matters of legislation should gain a support which they could not if presented separately. As a rule of proceeding in the General Assembly, it is manifestly an important one. But if it was intended to effect any practical object for the benefit of the people in the examination, construc- tion, or operation of acts passed and publislied, we are unable to perceive it. The title of an act may indicate to the reader its subject, and under the rule each act would contain one subject. To suppose that for such a purpose the Constitutional Convention adopted the rule under consideration would impute to them a most minute provision for a very imperfect heading of the chap- ters of laws and their subdivision. This provision being intended to operate upon bills in their progress through the General As- sembly, it must be held to be directory only. It relates to bills, and not to acts. It would be most mischievous in practice to make the validity of every law depend upon the judgment of every judicial tribunal of the State, as to whether an act or a bill con- tained more than one subject, or whether this one subject was clearly expressed in the title of the act or bill. Such a question would be decided according to the mental precision and mental discipline of each justice of the peace and judge. No practical benefit could arise from such inquiries. We are therefore of the opinion that in general the only safeguard against the violation of these rules of the houses is their regard for, and their oath to support, the constitution of the State. We say, in general, the CH. IV.] COKSTEUCTION OF STATE CONSTITUTIONS. 97 only safeguard; for whether a manifestly gross and fraudulent violation of these rules might authorize the court to pronounce a law unconstitutional, it is unnecessary to determine. It is to be presumed no such case will ever occur."'^ If the prevailing doctrine of the courts were in accord with this decision, it might become important to consider whether the ob- ject of the clause in question, as here disclosed, was not of such a character as to make the provision mandatory even in a statute. But we shall not enter upon that subject here, as elsewhere we shall have occasion to refer to decisions made by the highest judicial tribunals in nearly all the States, recognizing similar provisions as mandatory, and to be enforced by the courts. And we concur fully in what was said by Mr. Justice Emmot in speak- ing of this very provision, that " it will be found upon full con- sideration to be difficult to treat any constitutional provision as 1 Pirn V. Nicholson, 6 Ohio St. 176, 179. Those provisions which relate to the structure of a bill or the forms to be observed in its passage are generally di- rectory, while those as to the number of members necessary to pass a bill and as to the effect and operation of a bill when passed, are usually mandatory. Ex parte Talk, 42 Ohio St. 638. But the authen- tication of an act must be by signature, and one which, though passed, is not signed nor enrolled is void. State v. Kiesewetter, 45 Ohio St. 254. See also in line with Pim v. Nicholson, supra; Washington v. Page, 4 Cal. 388. In Hill V. Boyland, 40 Miss. 618, a provision requiring of all officers an oath to support the constitution was held not to invali- date the acts of officials who had neglected to take such an oath. And in McFherson V. Leonard, 29 Md. 377, the provision that the style of all laws shall be, "Be at enacted by tlie General Assembly of Maryland," was held directory. Similar rulings were made in Cape Girardeau v. Riley, 52 Mo. 424 ; St. Louis v. Foster, 52 Mo. 513 ; Swann v. Buck, 40 Miss. 268. Directly the opposite has been held in Nevada. State v. Rogers, 10 Nev. 250. So a requirement that indictments shall conclude, " against the peace and dignity of the people of West Virginia," was held in Lemons v. People, 4 W.Va. 755; s. c. 1 Green Cr. R. 666, to be mandatory, and an indictment which complied with it, except in abbreviating the name of the State, was held bad. A statute which Is passed in obedience to a constitutional requirement must be held mandatory. State t. Pierce, 35 Wis. 93, 99. A provision that the legislature shall provide for determining contested elec- tions is mandatory upon that department, but if in its enactments it fails to carry out the provision, the courts cannot annul the acts on that ground. Schulherr v. Bordeaux, 64 Miss. 59. So if the legisla- ture disregards a provision that before a special law is enacted there must be evi- dence of publication of notice of inten- tion to introduce it. Davis v. Gaines, 48 Ark. 370. If a constitution provides " that when any bill is presented for an act of in- corporation, it shall be continued until another election of members of Assembly shall have taken place and public notice of the pendency thereof given, it does not necessarily follow that the organ- ization under the charter is not as to all practical purposes valid. The pro- vision is directory to the Assembly, and in the absence of any clause forbid- ding the enactment, does not aSect the corporators unless the State itself in- tervenes. Whitney v. Wyman, 101 TJ. S. 392, 397. The State may waive condi- tions, and so long as the State raises no objection it is immaterial to other parties whether it is a corporation de farto or de jure. Ibid." McClinch v. 'Sturgis, 72 Me. 288, 295. 98 CONSTITUTIONAL LIMITATIONS. [OH. IV. merely directory and not imperative." ^ And with what was said by Mr. Justice Lumpkin, as to the duty of the courts : " It has been suggested that the prohibition in the seventeenth section of the first article of the Constitution, ' Nor shall any law or ordi- nance pass containing any matter different from what is expressed in the title thereof,' is directory only to the legislative and execu- tive or law-making departments of the government. But we do not so understand it. On the contrary, we consider it as much a matter of judicial cognizance as any other provision in that instrument. If the courts would refuse to execute a law sus- pending the writ of habeas corpus when the public safety did not require it, a law violatory of the freedom of the press or trial by jury, neither would they enforce a statute which contained matter different from what was expressed in the title thereof." ^ Self-executing Provisions. But although none of the provisions of a constitution are to be looked upon as immaterial or merely advisory, there are some which, from the nature of the case, are as incapable of compul- sory enforcement as are directory provisions in general.^ The reason is that, while the purpose may be to establish rights or to impose duties, they do not in and of themselves constitute a suf- ficient rule by means of which such right may be protected or such duty enforced. In such cases, before the constitutional pro- vision can be made effectual, supplemental legislation must be had ; and the provision may be in its nature mandatory to the legislature to enact the needful legislation, though back of it there lies no authority to enforce the command. Sometimes the con- stitution in terms requires the legislature to enact laws on a par- ticular Subject ; and here it is obvious that the requirement has only a moral force : the legislature ought to obey it ; but the right intended to be given is only assured when the legislation is voluntarily enacted.* Illustrations may be found in constitutional provisions requiring the legislature to provide by law uniform and just rules for the assessment and collection of taxes ; these must lie dormant until the legislation is had ; ^ they do not dis- • People V. Lawrence, 36 Barb. 177, contemplate the exercise of powers con- 186. ferred, when the legislature in its discre- ' Protho V. Orr, 12 Ga. 36. See also tion shall deem it wise ; like the provision Opinions of Judges, 18 Me. 458 ; Indiana that " suits may be brought against the Central Railroad Co. v. Potts, 7 Ind. 681 ; State in such courts as may be by law People V. Starne, 35 111. 121 ; State v. provided." Ex parte State, 52 Ala. 281. Miller, 45 Mo. 495 ; Weaver v. Lapsley, * School Board v. Patten, 62 Mo. 444. 43 Ala. 224; Nougues v. Douglass, 7 Gal. See Sehulherr «. Bordeaux, 64 Miss. 59. 65 ; State v. McQann, 4 Lea, 1. s Williams v. Detroit, 2 Mich. 560 ; ' There are also many which merely People v. Lake Co., .33 Cal. 487 ; Bowie CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 99 place the law previously in force, though the purpose may be manifest to do away with it by the legislation required.^ So, however plainly the constitution may recognize the right to ap- propriate private property for the general benefit, the appropria- tion cannot be made until the law has pointed out the cases, and given the means by which compensation may be assured.^ A different illustration is afforded by the new amendments to the federal Constitution. The fifteenth amendment provides that " the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude." To this extent it is self-executing, and of its own force it abolishes all distinctions in suffrage based on the particulars enumerated. But when it further provides that " Congress shall have power to enforce this article by appropriate legislation," it indicates the possibility that the rule may not be found sufficiently comprehen- sive or particular to protect fully this right to equal suffrage, and that legislation may be found necessary for that purpose.^ Other provisions are completely self-executing, and manifestly contemplate no legislation whatever to give them full force and operation.* A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced ; ^ V. Lott, 24 La. Ann. 214 ; Mississippi Mills tery tickets in this State," was held to be V. Cook, 56 Miss. 40 ; Coatesville Gas of itself a prohibition of lotteries. Bass Co. V. Chester Co., 97 Pa. St. 476. v. Nashville, Meigs, 421 ; Yerger w. Rains, 1 Moore, J., in Supervisors of Dodd- 4 Humph. 259. In State v. Woodward, ridge V. Stout, 9 W. Va. 703, 705 ; Cahoon 89 Ind. 110, it was held that a like pro- V. Commonwealth, 20 Gratt. 733 ; Lehigh vision took away any pre-existing au- Iron Co. o. Lower Macungie, 81 Pa. St. thority to carry them on, but that it 482 ; Erie Coi v. Erie, 113 Pa. St. 360. needed legislation to make them crimi- 2 Lamb v. Lane, 4 Ohio St. 167. See nal. All negative or prohibitive provi- School Board v. Patten, 62 Mo. 444; sions in a constitution are self-executing. Myers v. English, 9 Cal. 341 ; Gillinwater Law v. People, 87 111. 385. V. Mississippi, &c. B. R. Co., 13 HI. 1 ; « See People v. Bradley, 60 III. 39^; Cairo, &c. R. R. Co. v. Trout, 32 Ark. 17- People v. McRoberts, 62 111. 38 ; Mitchell A provision that all printing shall be v. Illinois, &c. Coal Co., 68 III. 286; done by the lowest bidder under regula- Beecher v. Baldy, 7 Mich. 488 ; People lions supplied by law is not eelf-executing. v. Rumsey, 64 111. 41 ; State v. HoUaday, Brown v. Seay, 5 Sou. Rep. 216 (Ala.). 64 Mo. 526 ; Miller v. Max, 55 Ala. 322; 8 United States v. Reese, 92 U. S. Hills v, Chicago, 60 111. 86 ; Kine v. Def- 214. Any constitutional provision is self- enbangh, 64 111. 291 ; People v. Hoge, 55 executing to this extent, that everything Cal. 612 ; Rowan v. Runnels, 5 How. 184 ; done in violation of it is void. Brien v. Friedman v. Mathes, 8 Heisk. 488 ; John- Williamson, 8 Miss. 14. A provision that son v. Parkersburgh, 16 W. Va. 402; " the legislature shall have no power to s. c. 37 Am. Rep. 779; De Turk v. Com., authorize lotteries for any purpose, and 18 Atl. Rep. 757 (Pa.), shall pass laws to prohibit the sale of lot- * Friedman v. Mathes, 8 Heisk. 488 ; 100 CONSTITUTIONAL LIMITATIONS. [OH. IT. and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law. Thus, a constitution may very clearly require county and town government; but if it fails to indicate its range, and to provide proper machinery, it is not in this particular self-executing, and legislation is essential.^ Rights in such a case may lie dormant until statutes shall provide for them, though in so far as any distinct provision is made which by itself is capable of enforcement, it is law, and all supplementary legislation must be in harmony with it. The provisions exempting homesteads from forced sale for the satisfaction of debts furnish many illustrations of self-executing provisions, and also of those which are not self-executhig. Where, as in California, the .constitution declares that " the legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families," the de- pendence of the provision on subsequent legislative action is man- ifest. But where, as in some other States, the constitution defines the extent, in acres or amount, that shall be deemed to constitute a homestead, and expressly exempts from any forced sale what is thus defined, a rule is prescribed which is capable of enforce- ment. Perhaps even in such cases, legislation may be desirable, by way of providing convenient remedies for the protection of the right secured, or of regulating the claim of the right so that its exact limits may be known and understood ; but all such legisla- tion must be subordinate to the constitutional provision, and in furtherance of its purpose, and must not in any particular attempt to narrow or embarrass it. The provision of a constitution which defines a homestead and exempts it from forced sale is self- executing, at least to this extent, that, though it may admit of supplementary legislation in particulars where in itself it is not as complete as may be desirable, it will override and nullify what- ever legislation, either prior or subsequent, would defeat or limit the homestead which is thus defined and secured. We have thus indicated some of the rules which we think are State V. Weston, 4 Neb. 216 ; People v. " damaged " in the course of a public im- Hoge, 55 Cal. 612; Ewing v. Orville M. provement. Householder d. Kansas City, Co., 56 Cal. 649 ; Hills v. Chicago, 64 111. 83 Mo. 488. 86. A provision imposing a duty upon i Wall, & parte, 48 Cal. 279; Attorney- an ofiBcer is self -executing. State v. Bab- General v. Common Council of Detroit, cock, 19 Neb. 230. So, one providing for 29 Mich. 108. For exemption provisions, jury trial in all of a certain class of cases, not self-executing, see Green v. Aker, 11 Woodwatd Iron Co. v. Cabaniss, 6 Sou. Ind. 223 ; Speidel v. Schlosser, 13 W. Va. Eep. 300 (Ala.). So one providing that 686. comp6lD:sfitioi'l shall be given for property CH. 1¥.J CONSTEUCTION OF STATE CONSTITUTIONS. 101 to be observed in the construction of constitutions. It will be perceived that we have not thought it important to quote and to dwell upon those arbitrary rules to which so much attention is sometimes given, and which savor rather of the closet than of practical life. Our observation would lead us to the conclusion Lthat they are more often resorted to as aids in ingenious attempts to make the constitution seem to say what it does not, than with a view to make that instrument express its real intent. All ex- ternal aids, and especially all arbitrary rules, applied to instru- ments of this popular character, are of very uncertain value ; and we do not regard it as out of place to repeat here what we have had occasion already to say in the course of this chapter, that they are to be made use of with hesitation, and only with much circumspection.^ 1 See People v. Cowles, 13 N. T. 350, •pec Johnson, 3. ; Temple v. Mead, 4 Vt. 535, 540, per Williams, 3. ; People v. Fancher, 50 N. Y. 291. " In construing so impor- tant an instrument as a constitution, espe- cially those parts which afiect the vital principle of a republican government, the elective franchise, or the manner of exer- cising it, we are not, on the one hand, to indulge ingenious speculations which may lead us wide from the true sense and spirit of the instrument, nor, on the other, to apply to it such narrow and constrained views as may exclude the real object and intent of those who framed it. We are to suppose that the autliors of such an instrument had a thorough knowledge of the force and extent of the words they employ ; that they had a beneficial end and purpose in view ; and that, more es- pecially in any apparent restriction upon the mode of exercising the right of suf- frage, there was some existing or antici- pated evil which it was their purpose to avoid. If an enlarged sense of any par- ticular form of expression should be neces- sary to accomplish so great an object as a convenient exercise of the fundamental privilege or right, — that of election, — such sense must be attributed. We are to suppose that those who were delegated to the great business of distributing the powers which emanated from the sov- ereignty of the people, and to the estab- lishment of the rules for the perpetual security of the rights of person and prop- erty, had the wisdom to adapt their language to future as well as existing emergencies, so that words competent to the then existing state of the community, and at the same time capable of being expanded to embrace more extensive re- lations, should not be restrained to their more obvious and immediate sense, if, consistently with the general object of the authors and the true principles of the compact, they can be extended to other relations and circumstances which an improved state of society may produce. Qui hceret in lilera haret in cortice is a fa- miliar maxim of the law. The letter kill- eth, but the spirit maketh alive, is the more forcible expression of Scripture." Parker, Ch. J., in Henshaw u. Foster, 9 Pick. 312, 316. There are some very per- tinent and forcible remarks by Mr. Jus- tice Miller on this general subject in Woodson V. Murdock, 22 Wall. 351, 381. 102 CONSTITUTIONAL LIMITATIONS, [CH. V. CHAPTER V. OP THE POWEItS WHICH THE LEGISLATIVE DEPARTMENT MAT EXERCISE. In considering the powers which may be exercised by the legis- lative department of one of the American States, it is natural that we should recur to those possessed by the Parliament of Great Britain, after which, in a measure, the American legislatures have been modelled, and from which we derive our legislative usages and customs, or parliamentary common law, as well as the prece- dents by which the exercise of legislative power in this country has been governed. It is natural, also, that we should incline to measure the power of the legislative department in America by the power of the like department in Britain; and to concede without reflection that whatever the legislature of the country from which we derive our laws can do, may also be done by the department created for the exercise of legislative authority in this country. But to guard against being misled by a comparison between the two, we must bear in mind the important distinction already pointed out, that with the Parliament rests practically the sovereignty of the country, so that it may exercise all the powers of the government if it wills so to do ; while on the other hand the legislatures of the American States are not the sovereign authority, and, though vested with the exercise of one branch of the sovereignty, they are nevertheless, in wielding it, hedged in on all sides by important limitations, some of which are imposed in express terms, and others by implications which are equally imperative. " The power and jurisdiction of Parliament, says Sir Edward Coke,^ is so transcendent and absolute, that it cannot be confined, either for persons or causes, within any bounds. And of this high court it may truly be said : ' Si antiquitatem spectes, est vetustissima ; si dignitatem, est henoratissima ; si jurisdictionem, est capacissima.' It hath sovereign and uncontrolled authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, ■ 1 4 Inst. 36. CH. v.] POWERS EXEECISED BY LEGISLATIVE DEPAETMENT. 103 military, maritime, or crimiaal; this being the place where that absolute despotic power, which must in all governments reside somewhere, is intrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that tran- scend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new-model the succes- sion to the Crown, as was done in the reign of Henry VIII. and William III. It can alter the established religion of the land, as was done in a variety of instances, in the reigns of King Henry VIII. and his three children. It can change and create afresh even the constitution of the kingdom and of Parliaments them- selves, as was done by the Act of Union, and the several statutes for triennial and septennial elections. It can, in short, do every- thing that is not naturally impossible ; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what the Parliament doth, no authority upon earth can undo ; so that it is a matter most essential to the liberties of this kingdom that such members be delegated to this important trust as are most eminent for their probity, their fortitude, and their knowledge ; for it was a known apothegm of the great Lord Treasurer, Burleigh, ' that England could never be ruined but by a Parliament ; ' and as Sir Matthew Hale observes : ' This being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should anyway fall upon it, the subjects of this kingdom are left without .all manner of remedy.' " ^ -' The strong language in which the complete jurisdiction of Par- liament is here described is certainly inapplicable to any authority in the American States, unless it be to the people of the States when met in their primary capacity for the formation of their fun- damental law ; and even then there rest upon them the restraints of the Constitution of the United States, which bind them as abso- lutely as they do the governments which they create. It becomes 1 Bl. Com. 160 ; Austin on Jurispru- as the constitution itself may provide, "but dence, Lee. (S; Fiscliel on English Con- not otherwise, and constitutional prin- stitution, b. 7, ch. 7. The British legisla- ciples which the British FarUament will ture is above the constitution, and moulds deal with as shall seem needful are in- and modifies it at discretion as public ex- flexible laws m America until the people, igencies and the needs of the time may under the forms provided for constitu- require. Butintbe American system such tionai amendments, see fit to change a thing as unlimited power is unknown, them. Such radical changes, for ex- Loan Association v. Topeka, 20 Wall, ample, as recently have been made in 665, 663 ; Campbell's case, 2 Bland Ch. the Irish land laws, and such forced 209 ; 8. c. 20 Am. Dec. 360. Every Am- modification in contracts, would be im- erican legislature is the creature of the possible in the United States without a constitution, and strictly sulrordinate to change in both federal and State consti- it. It may participate in making changes tutions. 104 CONSTITUTIONAL LIMITATIONS. [CH. V. important, therefore, to ascertain in what respect the State legis- latures resemble the Parliament in the powers they exercise, and how far we may extend the comparison without losing sight of the fundamental ideas and principles of the American system. The first and most notable difference is that to which we have already alluded, and which springs from the different theory on which the British Constitution rests. So long as the Parliament is recognized as rightfully exercising the sovereign authority of the country, it is evident that the resemblance between it and American legislatures in regard to their ultimate powers cannot be traced very far. The American legislatures only exercise a certain portion of the sovereign power. The sovereignty is in the people;^ and the legislatures which they have created are only to discharge a trust of which they have been made a deposi- tary, but which has been placed in their hands with well-defined restrictions. Upon this difference it is to be observed, that while Parliament, to any extent it may choose, may exercise judicial authority, one of the most noticeable features in American constitutional law is the care which has been taken to separate legislative, executive, and judicial functions. It has evidently been the intention of the people in every State that the exercise of each should rest with a separate department. The different classes of power have been apportioned to different departments ; and as all derive their authority froni the same instrument, there is an implied exclu- sion of each department from exercising the functions conferred upon the others. There are two fundamental rules by which we may measure the extent of the legislative authority in the States : — vl. In creating a legislative department and conferring upon it the legislative power, the people must be understood to have con- ferred the full and complete power as it rests in, and may be exer- cised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limita- tions which are contained in the Constitution of the United States. The legislative department is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion. 2. But the apportionment to this department of legislative power does not sanction the exercise of executive or judicial functions, except in those cases, warranted by parliamentary usage, where they are incidental, necessary, or proper to the exercise of legislative authority, or where the constitution itself, 1 Ante, p. 93. CH. v.] POWERS EXEECISED BY LEGISLATIVE DEPARTMENT. 105 in specified cases, may expressly permit it.^ Executive power is 80 intimately connected with legislative, that it is not easy to draw a line of separation ; but the grant of the judicial power to the department created for the purpose of exercising it must be regarded as an exclusive grant, covering the whole power, sub- ject only to the limitations which the constitutions impose, and to the incidental exceptions before referred to.^ While, there- fore, the American legislatures may exercise the legislative powers which the Parliament of Great Britain wields, except as restric- tions are imposed, they are at the same time excluded from other functions which may be, and sometimes habitually are, exercised by the Parliament. ^^ " The people in framing the constitution," says Benio, Ch. J., " committed to the legislature the whole law-making power of the State, which they did not expressly or impliedly withhold. Plen- ary power in the legislature, for all purposes of civil government, is the rule. A prohibition to exercise a particular power is an ex- ception. In inquiring, therefore, whether a given statute is con- stitutional, it is for those who question its validity to show that it is forbidden. I do not mean that the power must be expressly inhibited, for there are but few positive restraints upon the legis- lative power contained in the instrument. The first article lays \ down the ancient limitations which have always been considered essential in a constitutional government, whether monarchial or popular ; and there are scattered through the instrument a i§^ \ other provisions in restraint of legislative authority. But the affirmative prescriptions and the general arrangemeiits' 6i the constitution are far more fruitful of restraints up/Tn the legisla- ture. Every positive direfflMon contains an iaiplication against anything contrary to it, or which wouM fiMistrate or disappoint the purpose of that provision. The frai^e of the government, the grant of legislative power itself, th^/organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the Isiwmaking authority as strong as though a negative was expresftfed in each instance ; but indepen- dently of these restraints, express or implied, /every subject within the scope of civil govefnme^t is liable to be dealt with by the legislature.'*^ / " It has never been quesftkaied, so far as I know," says Redfield, Ch. J., " that the Amerip/an legislatures have the same unlimited power in regard to legislation which resides in the British Parlia- ment, except where thev are' restrained by written constitutions. 1 See post, pp. 11© to * 136, 467, *58. » People v. Draper, 15 N. Y. 532, 543. 2 See post, p. 107, note, i 106 CONSTITUTIONAL LIMITATIONS. [CH. V. That must be conceded, I think, to be a fundamental principle in the political organizations of the American States. We cannot well comprehend how, upon principle, it should be otherwise. The people must, of course, possess all legislative power originally. They have committed this in the most general and unlimited man- ner to the several State legislatures, saving only such restrictions as are imposed by the Constitution of the United States, or of the particular State in question." ^ " I entertain no doubt," says Oomstock, J., " that, aside from the special limitations of the constitution, the legislature cannot ex- ercise powers which are in their nature essentially judicial or . executive. These are, by the constitution, distributed to other departments of the government. It is only the ' legislative power' which is vested in the senate and assembly. But where the con- stitution is silent, and there is no clear usurpation of the powers distributed to other departments, I think there would be great difficulty and great danger in attempting to define the limits of this power. Chief Justice Marshall said : ' How far the power of giving the law may involve every other power, in cases where the constitution is silent, neverhas been, and perhaps never can be, definitely stated.'^ That very eminent judge felt the difficulty; but the dagger was less apparent then than it is now, when theo- alleged to be founded in natural reason or inalienable i"ights, ut subversive of the just and necessary powers of government, ^alJtra*^ the belief of considerable classes of men, and when too *^muclj reverence for government and law is certainly among the 'least? of the perils to which our institutions are exposed. lam reluctant to enter upon this field of inquiry, satisfied, as I am, . ti^at no rulet can1b&.laid down in terms which may not contain the ' ;erm of great mia@hidlto ifeciety, by giving to private opinion and [peculation a license to ^^se themselves to the just and legiti- nate powers of goverQment.X* Other judicial opinions in greS^t number might be cited in sup- 1 Thorpe v. Rutland & Burlington Rail- iJee. 44 ; Andrews v. State, 3 Heisk. 165 ; t road Co., 27 Vt. 140, 142. See also MIBttiUe, &e. R. R. Go. v. Hicks, 9 Bax. Adams •*. Howe, 14 Mass. 340, s. o. 14 44^v lewis's Appeal, 67 Pa. St. 153 ; Am. Dec. 216 ; People v. Rncker, 5 Col. Wali^er ». Cincinnati, 21 Ohio St. 14 ; 455 ; People v. Osborne, 7 Col. 605 ; Leg- Peopb »■ Wright, 70 111. 388. That the gett I). Hunter, 19 N. Y. 445 ; Cochran v. rule asf ^o the extent of legislative power Van Surlay, 20 Wend. 365; People v. Mot- is subsS^ntially the same in Canada, see rell, 21 Wend. 563 ; Sears v. Cottrell, 5 Valin \ Lan^ois, 3 Can. Sup. Ct. 1 ; Mich. 251 ; Beachamp v. State, 6 Blackf. Mayor, «p. v. The Queen, 3 Can. Sup. Ct. 299 ; Mason v. Wait, 5 111. 127 ; People v. 50B.."» \ «- « Supervisors of Orange, 27 Barb. 575 ; Tay- 2 nMml^ w.iPeck, 6 Cranch, 87, 136. lor V. Porter, 4 Hill, 140, per Brmson, 3. ; » Wymwiii*® "• People, 13 N. Y. 378, State V. Reid, 1 Ala. 612, s. c. 85 Am. 391. CH. v.] POWERS EXEECISED BY LEGISLATIVE DEPARTMENT. 107 port of the same general doctrine ; but as there will be occasion to refer to them elsewhere when the circumstances under which a statute may be declared unconstitutional are considered, we re- frain from further references in this place.^ Nor shall we enter upon a discussion of the question suggested by Chief Justice Mar- shall as above quoted-; ^ since, however interesting it may be as an abstract question, it is made practically unimportant by the careful separation of powers and duties between the several de- partments of the government which has been made by each of the State constitutions. Had no such separation been made, the dis- posal of executive and judicial duties must have devolved upon the department vested with the general authority to make laws ;^ 1 See post, p. 201, and cases uited in notes. ^ The power to distribute the judicial power, except so far as that has been done by the Constitution, rests with the legisla- ture : Commonwealth v. Hippie, 69 Pa. St. 9 ; State v. New Brunswick, 42 N. J. 51 ; State v. Brown, 71 Mo. 454 ; Jackson V. Nimmo, 3 Lea, 608 ; see Burke v. St. Paul, M. &c. Ry. Co., 35 Minn. 172 ; St. Paul V. Umstetter, 37 Minn. 15; but when the Constitution has conferred it upon certain specified courts, this must be understood to embrace the whole ju- dicial power, and the legislature cannot vest any portion of it elsewhere. Green- ongh V. Greenough, 11 Pa. St. 489 ; State V. Maynard, 14 111. 420 ; Gibson v. Emerson, 7 Ark. 172; Chandler v. Nash, 6 Mich. 409; Succession of Tanner, 22 La. Ann. 90 ; Gough v. Dorsey, 27 Wis. 119; Van Slyke v. Ins. Co., 39 Wis. 390; 8. c. 20 Am. Rep. 50 ; Alexander v. Ben- nett, 60 N. Y. 204 ; People v. Young, 72 111. 411 ; In re Cleveland, 17 Atl. Rep. 772 (N. J.) ; Risser v. Hoyt, 53 Mioji. 185 ; Shoultz v. McPheeters, 79 Ind. 873. The legislature cannot select persons to assist courts in the performance of their duties and act as a commission of appeal. State V. Noble, 21 N. B. Rep. 244 (Ind.) ; In re Courts of Appeals, 9 Col. 623. Courts established by the legislature cannot 60 N. Y. 274. Nor would it be held to embrace administrative functions of a quasi judicial nature, such as the assess* ment of property for taxation. State V. Commissioners of Ormsby County, 7 Nev. 392, and cases cited. See Auditor of State V. Atchison, &c. R. R. Co., 6 Ean. 600 ; s. c. 7 Am. Rep. 575. But a court may determine whether a proposed local improvement shall be undertaken. Bryant v. Robbins, 70 Wis. 258. It is not competent to confer upon the courts the power to tax : Monday v. Rahway, 43 N. J. 338 ; nor to impose on them ad- ministrative duties. Houseman v. Kent Circ. Judge, 68 Mich. 364. But after thirty-five years of exercise of such power under a statute, it is too late to object. Locke V. Speed, 62 Mich. 408. The power to appoint election commissioners not having been expressly coriferred on any department, the legislature may impose the duty of appointment on the county court. People v. Hoffman, 116 111. 587. Sucli appointments are upheld in In re Citizens of Cincinnati, 2 Plipp. 228 ; Rus- sell V. Cooley, 69 Ga. 215. But in Super- visors of Election, 114 Mass. 247, s. c. 19 Am. Rep. 341, a contrary doctrine is laid down. A chief justice cannot be em- powered to determine which claimant of an office shall hold it pending a, con- test. Such power, if executive, cafinot exercise jurisdiction to the exclusion of be given a judge; if judicial, belongs to that conferred by the Constitution on other courts. Montross v. State, 61 Miss. 429. See State v. Butt, 5 Sou. Rep. 597 (Fla.). But a general provision in the Constitution for the distribution of the judicial power, not referring to courts- martial, would not be held to forbid such courts by implication. People v. Daniell, a court. In re Cleveland, 17 Atl. Rep. 772 (N. J.). The legislature cannot re- quire a court to give its opinions in writ- ing : Vaughn v. Harp, 49 Ark. 160 ; nor to write syllabi to its decisions. In re Griffiths, 20 N. E. Rep. 513 (Ind.). s Calder v. Bull, 2 Root, 350, and 3 Ball. 386 ; Ross v. Whitman, 6 Cal. 361 ; 108 CONSTITUTIONAL LIMITATIONS. [OH. V. but assuming them to be apportioned already, we are only at lib- erty to liken the power of the State legislature to that of the Par- liament, when it confines its action to an exercise of legislative functions ; and such authority as is in its nature either executive or judicial is beyond its constitutional powers, with the few excep- tions to which we have already referred. » It will be important therefore to consider those cases where legislation has been questioned as encroaching upon judicial authority ; and to this end it may be useful, at the outset, to endeavor to define legislative and judicial power respectively, that we may ttie better be enabled to point out the proper line of distinction when questions arise in their practical application to actual cases. The legislative power we understand to be the authority, under the Constitution, to make laws, and to alter and repeal them. Laws, in the sense in which the word is here employed, are rules of civil conduct, or statutes, which the legislative will has pre- scribed. "The laws of a State," observes Mr. Justice Story, "are more usually understood to mean the rules and enactments pro- mulgated by the legislative authority thereof, or long-established local customs having the force of laws." ^ " The difference be- tween the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes, the law."^ And it is said that that which distinguishes a judicial from a legislative act is, that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of all future cases falling under its provisions.^ And in another case it is said*: "The legislative power extends only to the making of laws, and in its exercise it is limited and restrained by the paramount authority of the fede- ral and State constitutions. It cannot directly reach the property or vested rights of the citizen by providing for their forfeiture or Smith ». Judge, 17 Cal. 547 ; per Patterson, the validity of school rules, compiled nn- J., in Cooper v. Telfair, 4 DalL 19 ; Mar- der legislative authority, is not an exer- tin V. Hunter's Lessee, 1 Wheat. 304. cise of judicial power. In re School Law 1 Swift V. Tyson, 16 Pet. 18. Manual, 63 N. H. 574. Power to super- 2 Per Marshall, Ch. J., in Wayman «. sede an ordinance upon petition of tax- Southard, 10 Wheat. 46 ; per Gibson, Ch. payers as contrary to law cannot he J.,in Greenoughv. Greenough, 11 Pa. St. conferred upon a court: Shephard v. 494. See Governor v. Porter, 7 Humph. Wheeling, 30 W. Va. 479 ; nor to fix the 165 ; State v. Gleaaon, 12 Fla. 190 ; Haw- salary of a reporter in advance : Smith v. kins V. Governor, 1 Ark. 570 ; Westing- Strother, 68 Cal. 194 ; nor to make upon hausen v. People, 44 Mich. 265. its own whim a party a competent wit- * Bates i>. Kimhall, 2 Chip. 77. A ness who otherwise would not be. Till- prospective determination by a court of man v. Cocke, 9 Bax. 429. CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 109 transfer to another, without trial and judgment in the coui-ts ; for to do so would be the exercise of a power which belongs to another branch of the government, and is forbidden to the legislative." ^ " That is not legislation which adjudicates in a particular case, prescribes the rule contrary to the general law, and orders it to be enforced. Such power assimilates itself more closely to des- potic rule than any other attribute of government." ^ On the other hand, to adjudicate upon, and protect the rights and interests of individual citizens, and to that end to construe and apply the laws, is the peculiar province of the judicial depart- ment.^ " No particular definition of judicial power," says Wood- huri/, J., " is given in the constitution [ of New Hampshire], and, considering the general nature of the instrument, none was to be expected. Critical statements of the meanings in which all important words were employed would have swollen into volumes ; and when those words possessed a customary signification, a defi- nition of them would have been useless. But ' powers judicial,' ' judiciary powers,' and ' judicatories ' are all phrases used in the constitution; and though not particularly defined, are still so used to designate with clearness that department of government which it was intended should interpret and administer the laws. On general principles, therefore, those inquiries, deliberations, orders, and decrees, which are peculiar to such a department, must in their nature be judicial acts. Nor can they be both judicial and legislative; because a marked difference exists between the employments of judicial and legislative tribunals. The former decide upon tlie legality of claims and conduct, and the latter make rules upon which, in connection with the constitu- tion, those decisions should be founded. It is the province of judges to determine what is the law upon existing cases. In fine, the law is applied by the one, and made by the other. To do the first, therefore, — to compare the claims of parties with the law of the land before established^ — is in its nature a judicial act. But to do the last — to pass new rules for the regulation of new controversies — is in its nature a legislative act; and if these rules interfere with the past, or the present, and do not look wholly to the future, they violate the definition of a law as ' a rule 1 Newland v. Marsh, 19 III. S83. See also King v. Dedham Bank, 16 Mass. 2 Er vine's Appeal, 16 Pa. St. 256, 266. 447 ; Gordon v. Ingraham, 1 Grant's See also Greenongh v. Greenough, 11 Cases, 152 ; People v. Supervisors of New Pa. St. 489; Decliastellux v. Fairchild, York, 16 N. Y. 424; Beebe ». State, 6 15 Pa. St. 18 ; Trustees, &c. v. Bailey, Ind. 501 ; Greenough v. Greenongh, 11 lOPla. 238. Pa. St. 489; Taylor ». Place, 4 R. L ' Cincinnati, &c. Bailroad Co. v. Com- 324. missioners of Clinton Co., 1 Ohio St. 77. 110 CONSTITUTIONAL LIMITATIONS. [OH. V. of civil conduct ; ' ^ because no rule of conduct can with consis- tency operate upon what occurred before the rule itself was promulgated. "It is the province of judicial power, also, to decide private disputes between or concerning persons ; but of legislative power to regulate public concerns, and to make laws for the benefit and welfare of the State. Nor does the passage of private statutes conflict with these principles ; because such statutes, when law- ful, are enacted on petition, or by the consent of all concerned ; or else they forbear to interfere with past transactions and vested rights." 2 With these definitions and explanations, we shall now proceed to consider some of the cases in which the courts have attempted to draw the line of distinction between the proper functions of the legislative and judicial departments, in cases where it has been claimed that the legislature have exceeded their power by invading the domain of judicial authority. Declaratory Statutes. Legislation is either introductory of new rules, or it is declar- atory of existing rules. " A declaratory statute is one which is passed in order to put an end to a doubt as to what is the com- mon law, or the meaning of another statute, and which declares what it is and ever has been."* Such a statute, therefore, is ^ 1 Bl. Com. 44. The distinction be- assess the punishment in a murder case, tween legislative and judicial power lies State o. Hockett, 70 Iowa, 442 ; nor that between a rule and a sentence. Shrader, persons sentenced to jail may be employed Ex parte, ZZ Cal. 279. See Shumway a. on roads by county commissioners, under Bennett, 29 Mich. 461 ; Supervisors of regulations to be made by them. Holland Election, 114 Mass. 247. Tlie legislature v. State, 23 Fla. 123. cannot empower election boards to decide But it is an invasion of judicial power whether one by duelling has forfeited his to provide that in case of doubt a, statute right to vote or hold office. Common- shall be construed so as to save a lien wealth ». Jones, 10 Bush, 725; Burkettw. given by it.. Meyer v. Berlandi, 39 McCurty, 10 Bush, 758. But a board Minn. 438. Power to declare what may be empowered to re-count votes and acts shall be a misdemeanor cannot be make a statement of results. If they conferred on commissioners of vine cul- have no power to investigate frauds, they lure. £a; parte Cox, 63 Cal. 21. A county do not exercise judicial power. Andrews clerk cannot fix the amount of bail. V. Carney, 41 N. W. Rep. 923 (Mich.). Gregory w. State, 94 Ind. 384. Under a constitutional provision allowing ^ Merrill v. Sherburne, 1 N. H. 199, 208. the legislature to provide for removal of See Jones v. Perry, 10 Yerg. 69 ; Taylor an election officer for such cause as it v. Porter, 4 Hill, 140 ; Ogden v. Black- deema proper, the power to determine ledge, 2 Cranch, 272 ; Dash v. Van Kleek, whether the cause exists need not be vested 7 Johns. 477 ; Wilkinson v. Leland, 2 Pet. in the courts. People v. Stuart, 41 N. W. 627 ; Leland v. Wilkinson, 10 Pet. 294 ; Kep. 1091 (Mich.). See Brown v. DufEus, State v. Hopper, 71 Mo. 425. 66 Iowa, 193. It is not an infringement of ' Bouv. Law Diet. " Statute ; " Aueh judicial power to enact tliat a jury sliall tin on Jurisprudence, Lect. 37. CH. V.J POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. Ill always in a certain sense retrospective; because it assumes to determine what the law was before it was passed; and as a declaratory statute is important only in those cases where doubts have already arisen, the statute, when passed, may be found to declare the law to be different from what it has already been adjudged to be by the courts. Thus Mr. Fox's Libel Act declared that, by the law of England, juries were judges of the law in pros- ecutions for libel ; it did not purport to introduce a new rule, but to declare a rule already and always in force. Yet previous to the passage of this act the courts had repeatedly held that the jury in these cases were only to pass upon the fact of publication and the truth of the innuendoes ; and whether the publication was libellous or not was a question of law which addressed itself exclusively to the court. It would appear, therefore, that the legislature declared the law to be what the courts had declared it was not. So in the State of New York, after the courts had held that insurance companies were taxable to a certain extent under an existing statute, the legislature passed another act, declaring that such companies were only taxable at a certain other rate ; and it was thereby declared that such was the inten- tion and true construction of the original statute.^ In these cases it will be perceived that the courts, in the due exercise of their authority as interpreters of the laws, have declared what the rule established by the common law or by statute is, and that the legislature has then interposed, put its own construction upon the existing law, and in effect declared the judicial interpretation to be unfounded and unwarrantable. The courts in these cases have clearly kept within the proper limits of their jurisdiction, and if they have erred, the error has been one of judgment only, and has not extended to usurpation of power. "Was the legisla- ture also within the limits of its authority when it passed the declaratory statute ? ^ The decision of this question must depend perhaps upon the purpose which was in the mind of the legislature in passing the declaratory statute ; whether the design was to give to the rule now declared a retrospective operation, or, on the other hand, merely to establish a construction of the doubtful law for the determination of cases that may arise in the future. It is always competent to change an existing law by a declaratory statute; and where the statute is only to operate upon future cases, it is no objection to its validity that it assumes the law to have been in the past what it is now declared that it shall be in the 1 People V. Supervisors of New York, 16 N. Y. 424. 112 CONSTITUTIONAL LIMITATIONS. [CH.T. future.^ But the legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made ; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the legislature would in effect sit as a court of review to which parties might appeal when dissatisfied with the rulings of the courts.^ wards, the legislature passed an act, de- claring that any single person living habitually as housekeeper to himself should be regarded as the head of a fam- ily. Held void as an exercise of judicial power. Calhoun o. McLendon, 42 Ga. 405. The fact that the courts had pre- viously given a construction to the law may show more clearly a purpose in the legislature to exercise judicial authority, but it would not be essential to that end. As is well said in Haley v. Philadelphia, 68 Pa. St. 45, 47 : " It would be mon- strous to maintain that where the words and intention of an act were so plain that no court had ever been appealed to for the purpose of declaring their meaning, it was therefore in the power of the legis- lature, by a retrospective law, to put a construction upon them contrary to tlie obvious letter and spirit. Reiser v. Wil- liam Tell Pund Association, 39 Pa. St. 137, is an authority in point against such a doctrine. An expository act of as- sembly is destitute of retroactive force, because it is an act of judicial power, and is in contravention of tlie ninth section of the ninth article of the Constitution, which declares that no man can be de- prived of his property unless 'by the judgment of his peers or the law of the land.' " See 8 Am. Rep. 155, 156. And on the force and effect of declaratory laws in general, see Salters v. Tobias, 3 Paige, 838 ; Postmaster-General v. Early, 12 Wheat. 136 ; Union Iron Co. v. Pierce, 4 Biss. 327 ; Planters' Bank v. Black, 19 Miss. 43 ; Gough v. Pratt, 9 Md. 526 ; McNichol V. U. S., &c. Agency, 74 Mo. 457 ; Titusville Iron Works v. Keystone Oil Co., 122 Pa. St. 627; Stebbins V. Comers Pueblo Co., 2 McCrary, 196. The words "former jeopardy" had a settled meaning when the Constitution was adopted which by a declaratory sta- tute the legislature cannot change. Pow- ell V. State, 17 Tex. App. 345. ' Union Iron Co. i>. Pierce, 4 Biss. 327. 2 In several different cases the courts of Pennsylvania had decided that a testator's mark to his name, at tlie foot of a testamentary paper, but without proof that the name was written by Iiis express direction, was not the signature required by the statute, and the legislature, to use the language of Chief Justice Gibson, " declared, in order to overrule it, that every last will and testament heretofore made, or hereafter to be made, except such as may have been fully adjudicated prior to the passage of this act, to which the testator's name is subscribed by his direction, or to which the testator has made his mark or cross, shall be deemed and taken to be valid. How this man- date to the courts to establish a particular interpretation of a particular statute can be taken for anything else than an exer- cise of judicial power in settling a ques- tion of interpretation, I know not. The judiciary had certainly recognized a legis- lative interpretation of a statute before it had itself acted, and consequently be- fore a purchaser could be misled by its judgment ; but he might have paid for ,a title on the unmistakable meaning of plain words ; and for the legislature sub- sequently to distort or pervert it, and to enact that white meant black, or that black meant white, would in the same de- gree be an exercise of arbitrary and un- constitutional power." Greenough v. Greenough, 11 Pa. St. 489, 494. The act in this case was held void so far as its operation was retrospective, but valid as to future cases. And see James v. Row- land, 42 Md. 462; Reiser v. Tell Associa- tion, 39 Pa. St. 187. The constitution of Georgia entitled the head of a family to enter a homestead, and the courts decided that a single person, having no others dependent upon him, could not be re- garded the head of a family, tliough keeping house with servants. After- OH. v.] POWEES EXERCISED BY LEGISLATIVE DEPAETMENT. 113 As the legislature cannot set aside the construction of the law already applied by the courts to actual cases, neither can it com- pel the courts for the future to adopt a particular construction of a law which the legislature permits to remain in fo^ce. "To declare what the law is, or has been is a judicial power ; to declare what the law shall be, is legislative. One of the fundamental principles of all our governments is, that the legislative power shall be separate from the judicial." ^ If the legislature would prescribe a different rule for the future from that which the courts enforce, it must be done by statute, and cannot be done by a mandate to the courts, which leaves the law unchanged, but seeks to compel the courts to construe and apply it, not according to the judicial, but according to the legislative judgment.^ But in any case the substance of the legislative action should be regarded rather than the form ; and if it appears to be the intention to es- tablish by declaratory statute a rule of conduct for the future, the courts should accept and act upon it, without too nicely inquiring whether the mode by which the new rule is established is or is not the best, most decorous, and suitable that could have been adopted. If the legislature cannot thus indirectly control the action of the courts, by requiring of them a construction of the law accord- ing to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials,* 1 Dash V. Van Kleek, 7 Johns. 477, 498, which had previously been talcen should per Thompson, J. ; Ogden v. Blackledge, be read in evidence on the trial of a oer. 2 Cranch, 272 ; Lambertson u. Hogan, 2 tain cause, notwithstanding informalities, Pa. St. 22 ; Seihert v. Linton, 6 W. Va. is void. Dupy v. Wickwire, 1 D. Chip. 57; Arnold v. Kelley, 5 W. Va. 446 ; Mc- 237 ; s. c. 6 Am. Dec. 729. Daniel v. Correll, 19 111. 226. Tlie legisr » Lewis v. Webb, 8 Me. 826 j Durham lature cannot dictate what instructions v. Lewiston, 4 Me. 140 ; Atkinson v. Dun- shall be given by the court to a jury, ex- lap, 50 Me. HI ; Bate^ v. Kimball, 2 Chip, cept by general law. State i'. Hopper, 77 ; Staniford v. Barry, 1 Aik. 314; Mer- 71 Mo. 425. A legislative act directing rill v. Sherburne, 1 N. H. 199; Opinion of the levy and collection of a tax which has Judges in JIatter of Dorr, 3 R. I. 299 ; already been declared illegal by the Taylor v. Place, 4 R. I. 324 ; De Chastel- judiciary, is void, as an attempted rever- lux v. Fairchild, 15 Pa. St. 18; Young sal of judicial action. Mayor, &c. v. Horn, v. State Bank, 4 Ind. 801 ; Beebe v. State, 26 Md. 194; Butler v. Supervisors of 6 Ind. 501 ; Lanier w. Gallatas, 13 La. Ann. Saginaw, 26 Mich. 22. See Forster ... 175; Mayor, &c. v. Horn, 26 Md. 194; Forster, 129 Mass. 559. This doctrine, Weaver v. Lapsley, 43 Ala. 224 ; San- however, would not prevent the correc- ders v. Cabaniss, 43 Ala. 173; Moser v. tion of mere errors in taxation by legis- White, 29 Mich. 59; Sydnor «. Palmer, lation of a retrospective character. See 82 Wis. 406 ; People v. Frisbie, 26 Cal. post, p. 456. 135 i Lawson v. Jeffries, 47 Miss 68B ; 2 Governor v. Porter, 5 Humph. 165 ; b. o. 12 Am. Rep. 342 ; Rate iffle v. Ander- People V. Supervisors, &e., 16 N. Y. 424 ; son, 31 Gratt. 105 ; 8 o. 31 Am. Rep. 716. Reiser v. Tell Association, 39 Pa. St. And see post, pp. 482-484, and notes. 137 • O'Conner v. Warner, 4 W. & S. 223 ; It is not competent by legislation to au- Lambertson v. Hogan, 2 Pa. St. 22. An thorize the court of final resort to re- act directing that a certain deposition open and rehear cases previously decided. 8 114 CONSTITUTIONAL LIMITATIONS. [CH. V. ordering the discharge of offenders,^ or directing what particular steps shall be taken in the progress of a judicial inquiry .^ And as a court must act as an organized body of judges, and, where differences of opinion arise, they can only decide by majorities, it Dorsey v. Dorsey, 37 Md. 64 ; 8. o. 11 Am. Rep. 528. The legislature may control remedies, &c., but, when the matter has proceeded to judgment, it has passed be- yond legislative control. Oliver v. Mc- Clure, 28 Ark. 555; Griffin's Executor v. Cunningham, 20 Gratt. 31 ; Teel v. Yan- cey, 23 Gratt. 690; Hooker v. Hooker, 18 Miss. 599. After an appeal bond was signed by the attorney, the court held bonds so signed bad. A statute validat- ing all prior bonds so signed is void. An- drews V. Beane, 15 R. I. 451. 1 In State V. Fleming, 7 Humph. 152, a legislative resolve that " no fine, for- feiture, or imprisonment should be im- posed or recovered under the act of 1837 [then in force], and that all causes pend- ing in any of the courts for such offence should be dismissed," was held void as an invasion of judicial authority. The le- gislature cannot declare a forfeiture of a right to act as curators of a college. State V. Adams, 44 Mo. 570. Nor can it author- ize the governor or any other State officer to pass upon the validity of State grants and correct errors therein ; tliis being judicial. Hilliard e. Connelly, 7 Ga. 172. Nor, where a corporate charter provides that it shall not be repealed " unless it shall be made to appear to the legislature that there has been a violation by the company of some of its provisions," can there be a repeal before a judicial inquiry into the violation. Flint, &c. Flank Road Co. ». WoodhuU, 25 Mich. 99. A legis- lative act cannot turn divorces nisi into absolute divorces, of its own force. Spar- hawk e. Sparhawk, 116 Mass. 315. But to take away by statute a statutory right of appeal is not an exercise of judicial authority. Ex parte McCardle, 7 Wall. 606. And it has been held that a statute allowing an appeal in a particular case was valid. Prout v. Berry, 2 Gill, 147 ; State ». Northern Central R. R. Co., 18 Md. 193. A retroactive statute, giving the right of appeal in cases in which it had previously been lost by lapse of time, was sustained in Page v. Mathews's Adm'r, 40 Ala. 547. But in Carleton v. Goodwin's Ex'r, 41. Ala. 153, an act the effect of which would have been to revive discontinued appeals, was held void as an exercise of judicial authority. See oases cited in next note. ^ Opinions of Judges on the Dorr Case, 3 R. I. 299 ; State v. Hopper, 71 Mo. 425. In the case of Picquet, Appellant, 5 Pick. 64, the judge of probate had ordered let- ters of administration to issue to an appli- cant therefor, on his giving bond in the penal sum of $50,000, with sureties with- in the Commonwealth, for the faithful performance of his duties. He was un- able to give the bond, and applied to the legislature for relief. Thereupon a re- solve was passed "empowering" the judge of probate to grant the letters of administration, provided the petitioner should give bond with his brother, a resi- dent of Paris, France, as surety, and " that such bond should be in lieu of any and all bond or bonds by any law or stat- ute in this Commonwealth now in force required," &c. The judge of probate re- fused to grant the letters on the terms specified In this resolve, and the Supreme Court, while holding that it was not com- pulsory upon him, also declared their opinion that, if it were so, it would be inoperative and void. In Bradford v. Brooks, 2 Aik. 284, it was decided that the legislature had no power to revive a, commission for proving claims against an estate after it had once expired. See also Bagg's Appeal, 43 Pa. St. 512; Trus- tees V. Bailey, 10 Fla. 238. In HilLw; Sunderland, 3 Vt. 507, and Burch v. New- berry, 10 N. Y. 374, it was held that the legislature had no power to grant to par- ties a right to appeal after it was gone under the general law. In Burt v. Wil- liams, 24 Ark. 91, it was held that the granting «f continuances of pending cases was the exercise of judicial authority, and a legislative act assuming to do this was void. And where, by the general law, the courts have no authority to grant a di- vorce for a given cause, the legislature cannot confer the authority in a particu- lar case. Simmonds v. Siromonds, 103 Mass. 572 ; s. o. 4 Am. Rep. 576. And see post, pp. 129, note, 483 and note. CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 115 has been held that it would not be in the power of the legislature to provide that, in certain contingencies, the opinion of the mi- nority of a court, vested with power by the Constitution, should prevail, so that the decision of the court in such cases should be rendered against the judgment of its members.^ Nor is it in the power of the legislature to bind individuals by a recital of facts in a statute, to be used as evidence against the parties interested. A recital of facts in the preamble of a statute may perhaps be evidence, where it relates to matters of a public nature, as that riots or disorders exist in a certain part of the country ; ^ but where the facts concern the rights of individuals, the legislature cannot adjudicate upon them. As private statutes are generally obtained on the application of some party interested, and are put in form to suit his wishes, perhaps their exclusion from being made evidence against any other party would result from other general principles ; but it is clear that the recital could have no force, except as a judicial finding of facts ; and that such finding is not within the legislative province.^ We come now to a class of cases in regard to which there has been serious contrariety of opinion ; springing from the fact, per- haps, that the purpose sought to be accomplished by the statutes is generally effected by judicial proceedings, so that if the statutes are not a direct invasion of judicial authority, they at least cover ground which the courts usually occupy under general laws con- ferring the jurisdiction upon them. We refer to Statutes empowering Cruardians and other Trustees to sell Lands. Whenever it becomes necessary or proper to sell the estate of a decedent for the payment of debts, or of a lunatic or other 1 In Clapp i: Ely, 27 N. J. 622, it was pose it. The court was nearly equally held that a statute which provided that divided, standing seven to six. But the no judgment of the Supreme Court should decision of a majority of a court is bind- be reversed by the Court of Errors anfl ing as though unanimous. Feige v. Mich. Appeals, unles.s a majority of those mem- Cent. E. R. Co., 62 Mich. 1. A statute? hers of the court who were competent to authorizing an unofficial person to sit in sit on the hearing and decision should the place of a judge who is disqualified concur in the reversal, was unconstitu- was held void in Van Slyke v. Insurance tional. Its effect would he, if the court Co., 39 Wis. 390 : 8. c. 20 Am. Rep. 60. were not full, to make the opinion of the That judicial power cannot be dele- minority in favor of affirmance control gated, see Cohen v. Hoff, 8 Brev. 500. that of the majority in favor of reversal. Therefore a commission of appeals cre- unless the latter were a majority of the ated by statute cannot decide causes whole court. Such a provision in the in place of the constitutional Supreme constitution might be proper and unex- Court. State v. Noble, 21 N. E. Rep. 244 ceptionable; but if the constitution has (Ind.). created a court of appeals, without any " Rex v. Sutton, 4 M. & S. 532. restriction of this character, the ruling of » Elmendorf v. Cannichael, 3 Litt; 476 ; this case is that the legislature cannot im- 8. c. 14 Am. Dec. 86 ; Parmelee v. Thomp- 116 CONSTITUTIONAL LIMITATIONS. [CH. T. incompetent person for the same purpose, or for future support, or of a minor to provide the means for his education and nurture, or for the most profitable investment of the proceeds, or of ten- ants in common to effectuate a partition between them, it will probably be found in every State that some court is vested with jurisdiction to make the necessary order, if the facts after a hearing of the parties in interest seem to render it important. The case is eminently one for judicial investigation. There are facts to be inquired into, in regard to which it is always possible that disputes may arise ; the party in interest is often incompe- tent to act on his own behalf, and his interest is carefully to be inquired into and guarded ; and as the proceeding will usually be ex parte, there is more than the ordinary opportunity for fraud upon the party interested, as well as upon the authority which grants permission. It is highly and peculiarly proper, therefore, that by general laws judicial inquiry should be provided for these cases, and that such laws should require notice to all proper flarties, and afford an opportunity for the presentation of any facts which might bear upon the propriety of granting the applications. But it will sometimes be found that the general laws provided for these cases are not applicable to some which arise ; or, if applicable, that they do not accomplish fully all that in some cases seems desirable ; and in these cases, and perhaps also in some others without similar excuse, it has not been unuSual for legislative authority to intervene, and by special statute to grant the permission wliich, under the general law, would be granted by the courts. The power to pass such statutes has often been disputed, and it may be well to see upon what basis of authority, as welL as of reason, it rests. If in fact the inquiry which precedes the grant of authority is in its nature judicial, it would seem clear that such statutes must be ineffectual and void. But if judicial inquiry is not essential, and the legislature may confer the power of sale in such a case upon an ex parte presentation of evidence, or upon the represen- tations of the parties without any proof whatever, then we must consider the general laws to be passed, not because the cases fall necessarily within the province of judicial action, but because the courts can more conveniently consider, and more properly, safely, and inexpensively pass upon such cases, than the legisla- tive body to which the power primarily belongs.^ son, 7 Hill, 77 j Lothrop v. Steadman, 42 in Kentucky, Virffinia, Missouri, Oregon, >Cnnn. 583, 692. Ifevada, Indiana, Maryland, New Jersey, 1 There are constitutional proTisions Arkansas, Florida, Illinois, Wisconsin, CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 117 The rule upon this subject which appears to be deducible from the authorities, is this: If the party standing in position of trustee applies for permission to convert by a sale the real prop- erty into personal, in order to effectuate the purposes of the trust, and to accomplish objects in the interest of the , xxatui que trust. ■ not otherwise attainable, there is nothing in the granting of per- mission which is in its nature judicial. To grant permission is merely to enlarge the sphere of the fiduciary authority, the better to accomplish the purpose for which the trusteeship exists ; and while it would be entirely proper to make the questions which might arise assume a judicial form, by referring them to some proper court for consideration and decision, there is no usurpa- tion of power if the legislature shall, by direct action, grant the permission. In the case of Rice v. Parkman,^ certain minors having become entitled to real estate by descent from their mother, the legisla- ture passed a special statute empowering their father as guardian for them, and, after giving bond to the judge of probate, to sell and convey the lands, and put the proceeds at interest on good security for the benefit of the minor owners. A sale was made accordingly ; but the children, after coming of age, brought suit against the party claiming under the sale, insisting that the special statute was void. There was in force at the time this special statute was passed, a general statute, under which license might have been granted by the courts ; but it was held that this general law did not deprive the legislature of that full and com- plete control over such cases which it would have possessed had no such statute existed. " If," say the court, " the power by which the resolve authorizing the sale in this case was passed were of a judicial nature, it would be very clear that it could not have been exercised by the legislature without violating an express provision of the constitution. But it does not seem to us to be of this description of power ; for it was not a case of con- troversy between party and party, nor is there any decree op judgment affecting the title to property. The only object of the authority granted by the legislature was to transmute r^al into Texas, WestVirginia, Michigan, and Col- this case in Jones v. Perry, 10 Yerg. 59; orado, forbidding special lav^s licensing s. c. 30 Am. Dec. 430. That case is out the sale of the lands of minors and other of harmony with the current of authority persons under legal disability. Perhaps on the subject here considered. In Cali- the general provision in some other con- fornia it has been held that where a minor stitutions, forbidding special laws in cases has a guardian, it is not competent for the where a general law could be made ap- legislature to empower another to sell his plicable, might also be held to exclude lands. Lincoln k. Alexander, 52 Cal. 482 j such special authorization. s. c. 28 Am. Rep. 639. 1 16 Mass. 326. See the criticism of 118 CONSTITUTIONAL LIMITATIONS. [CH. V. personal estate, for purposes beneficial to all who were interested therein. This is a power frequently exercised by the legislature of this State, since the adoption of the constitution, and by the legislatures of the province and of the colony, while under the sovereignty of Great Britain, analogous to the power exercised by the British Parliament on similar subjects time out of mind. Indeed it seems absolutely necessary for the interest of those who, by the general rules of law, are incapacitated from disposing of their property, that a power should exist somewhere of con- verting lands into money. iPor otherwise many minors might suffer, although having property ; it not being in a condition to yield an income. This power must rest in the legislature in this Commonwealth ; that body being alone competent to act as the general guardian and protector of those who are disabled to act for themselves. " It was undoubtedly wise to delegate this authority to other bodies, whose sessions are regular and constant, and whose struc- ture may enable them more easily to understand the merits of the particular application brought before thejaa. But it does not fol- low that, because the power has been delegated by the legislature to courts of law, it is judicial in its character. For aught we see, the same authority might have been given to the selectmen of each town, or to the clerks or registers of the counties, it being a mere ministerial act, certainly requiring discretion, and some- times knowledge of law, for its due exercise, but still partaking in no degree of the characteristics of judicial power. It is doubt- less included in the general authority granted by the people to the legislature by the constitution. For full power and authority is given from time to time to make, ordain, and establish all man- ner of wholesome and reasonable orders, laws, statutes, and ordinances, directions, and instructions (so as the same be not repugnant or contrary to the constitution) , as they shall judge to be for the good and welfare of the Commonwealth, and of the subjepts thereof. No one imagines that, under this general authority, the legislature could deprive a citizen of his estq,te, or impair "any valuable contract in which he might be interested. But there seems to be no reason to doubt that, upon his applica- tion, or the application of those who properly represent him, if disabled from acting himself, a beneficial change of his estate, or a sale of it for purposes necessary and convenient for the lawful owner, is a just and proper subject for the exercise of that authority. It is, in fact, protecting him in his property, which the legislature is bound to do, and enabling him to derive subsis- tence, comfort, and education from property which might other- CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 119 wise be wholly useless during that period of life when it might be most beneficially employed. "If this be not true, then the general laws under which so many estates of minors, persons non compos mentis, and others, have been sold and converted into money, are unauthorized by the constitution, and void. For the courts derive their authority from the legislature, and, it not being of a judicial nature, if the legislature had it not, they could not communicate it to any other body. Thus, if there were no power to relieve those from actual distress who had unproductive property, and were disabled from conveying it themselves, it would seem that one of the most essential objects of government — that of providing for the wel- fare of the citizens — would be lost. But the argument which has most weight on the part of the defendants is, that the legisla- ture has exercised its power over this subject in the only consti- tutional way, by establishing a general provision; and that, having done this, their authority has ceased, they having no right to interfere in particular cases. And if the question were one of expediency only, we should perhaps be convinced by the argu- ment, that it would be better for all such applications to be made to the courts empowered to sustain them. But as a question of right, we think the argument fails. The constituent, when he has delegated an authority without an interest, may do the act himself which he has authorized another to do ; and especially when that constituent is the legislature, and is not prohibited by the constitution from exercising the authority. Indeed, the whole authority might be revoked, and the legislature resume the burden of the business to itself, if in its wisdom it should deter- mine that the common welfare required it. It is not legislation which must be by general acts and rules, but the use of a parental or tutorial power, for purposes of kindness, without interfering with or prejudice to the rights of any but those who apply for specific relief. The title of strangers is not in any degree affected by such an interposition." ^ 1 In Shumvraj t>. Bennett, 29 Mich, courts. See, on the same subject, State 451, the distinction between judicial and v. Armstrong, 3 Sneed, 634 ; Galesburg v. administrative power is pointed out, and Hawlcinson, 75 III. 152. Compare Bur^ it is held that the question of incorporat- lington v. Leebrick, 43 Iowa, 262, and ing territory as a village- cannot be made Wahoo v. Dickinson, 36 N. W. Rep. 813 . a judicial question. A like decision is (Neb.), where it is held the question of ' made in State v. Simons, 32 Minn. 540, extending, after hearing, the limits of a and by Chancellor Cooper, in Ex parte municipality may be decided by a court. Burns, 1 Tenn. Ch. B. 83, though it is That the courts cannot be clothed with said in that case that the organization of legislature authority, see Minnesota v. corporations which are created by legisla- Young, 29 Minn. 474. Compare Ex parte tive authority may be referred to the Mato, 19 Tex. App. 112. For the distino- 120 CONSTITUTIONAL LIMITATIONS. [CH. V. A similar statute was sustained b/ the Court for the Correction of Errors in New York. "It is clearly," says the Chancellor, " within the powers of the legislature, as parens patrice, to pre- scribe such rules and regulations as it may deem proper for the stiperintendence, disposition, and management of the property and effects of infants, lunatics, and other persons who are incapable of managing their own affairs. But even that power cannot con- stitutionally be so far extended as to transfer the beneficial use of the property to another person, except in those cases where it can legally be presumed the owner of the property Would himself have given the use of his property to the other, if he had been in a situation to act for himself, as in the case of a provision out of the estate of an infant or lunatic for the support of an indigent parent or other near relative." * tion between political and judicial power, see further, Dickey v. Reed, 78 III. 261 ; Commonwealth v. Jones, 10 Bush, 725. And see post, pp. 125, 126 and notes. In Hegarty'a Appeal, 75 Pa. St. 603, the power of a legislature to authorize a trus- tee to sell the lands of parties who were sui juris, and might act on their own be- half, was denied, and the case was dis- tinguished from Norris v. Clymer, 2 Fa. St. 277, and others which had followed it. The foreclosure of a mortgage on private property cannot be accomplished by legis- lative enactment. Ashuelot B. K. Co. v. Elliott, 58 N. H. 451. Power to try city officers by impeach- ment may rest in a city council, the judg- ment extending only to removal and dis- qualification to hold any corporate office. State V. Judges, 35 La. Ann. 1075. I Cochran «. Van Surlay, 20 Wend. 365, 373. See the same case in the Supreme Court, sub nam. Clarke v. Van Surfay, 15 Wend. 436. See also Suydam v. William- son, 24 Hoiy. 427 ; Williamson v. Suydam, 6 Wall. 723; Heirs of Holman v. Bank of Norfolk, 12 Ala. 869; Florentine v. Bar- ton, 2 Wall. 210. In Hoyt v. Sprague, 103 U. S. 613, it was held competent, by special statute, to provide for the invest- ment of the estate of minors in a manu- facturing corporation, and that, after the investment was accordingly made, no ac- count could be demanded on their behalf, except of the stock and its dividends. But the legislature cannot empower the guar- dian of infants to mortgage their lands to pay demands which are not obligations against them or their estate. Burke v. Mechanics' Savings Bank, 12 R. I. 513. In Brevoort ». Grace, 68 N. Y. 245, the power of the legislature to authorize the sale of lands of infants by special statute was held to extend to the future contin- gent interests of those not in being, but not to the interests of non-consenting adults, competent to act on their own be- half. In Opinions of the Judges, 4 N. H. 665, 672, the validity of such, a special statute, under the constitution of New Hampshire, was denied. The judges say : " The objection to the exercise of such a power by the legislature Is, that it is in its. nature both legislative and judicial. It is the province of the legislature to pre- scribe the rule of law, but to apply it to particular cases is the business of the courts of law. And the thirty-eighth ar- ticle in the Bill of Hights declares that 'in the government of this State the three essential powers thereof, to wit, the legis- lative, executive, and judicial, ought to be kept as separate from, and independ- ent of, each other as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.' The exercise of such a power by the legis- lature can never be necessary. By the existing laws, judges of probate have very extensive jurisdiotion to license the sale of the real estate of minors by their guar- dians. If the jurisdiotion of the judges of probate be not sufficiently extensive to reach all proper cases, it may be a good CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 12il The same ruling has often been made in analogous cases. In Ohio, a special act of the legislature authorizing commissioners to make sale of lands held in fee tail, by devisees under a will, in order to cut off the entailment and effect a partition between them, — the statute being applied for by the mother of the dev- isees and the executor of the will, and on behalf of the devisees, — was held not obnoxious to constitutional objection, and to be sustainable on immemorial legislative usage, and on the same ground which would support general laws for the same purpose.^ In a case in the Supreme Court of the United States, where an executrix who had proved a will in New Hampshire made sale of lands without authority in Rhode Island, for the purpose of satis- fying debts against the estate, a subsequent act of the Rhode Island legislature, confirming the sale, was held not an encroach- ment upon the judicial power. The land, it was said, descended to the heirs subject to a lien for the payment of debts, and there the general law of the land, it is presumed that the legislature would be unwilling to rest the justification of an act authorizing the sale of a minor's estate upon any assent which the guardian or the minor could give in the proceeding. The question then is, as it seems to us, Can a ward be de- prived of his inheritance without his con- sent by an act of the legislature which is intended to apply to no other individual f The fifteenth article in the Bill of Rights declares that no subject shall be deprived of his property but by the judgment of his peers or the law of the land. Can an act of the legislature, intended to authorize one man to sell the land of another with- out his consent be ' the law of the land ' within the meaning of the constitution ? can it be the law of the land in a free country? If the question proposed to us can be resolved into these questions, as it appears to us it may, we feel entirely confident that the representatives of the people of this State will agree with us in the opinion we feel ourselves bound to ex- press on the question submitted to us, that the legislature cannot authorize a guar- dian of minors, by a special act or resolve, to make a valid conveyance of the real estate of his wards." See also Jones u. Perry, 10 Yerg. 59 ; s. c. 30 Am. Dec. 430; Lincoln u. Alexander, 52 Cal. 482 ; s. o. 28 Am.Kep. 639. 1 Carroll v. Lessee of Olmsted, 16 Ohio, 251. reason why that jurisdiction should be extended, but can hardly be deemed a sufficient reason for the particular inter- position of the legislature in an individual case. If there be a defect in the laws, they should be amended. Under our in- stitutions all men are viewed as equal, en- titled to enjoy equal privileges, and to be governed by equal laws. If it be fit and proper that license should be given to one guardian, under particular circumstances, to sell the estate of his ward, it is fit and proper that all other guardians should, under similar circumstances, have the same license. This is the very genius and spirit of our institutions. And we are of opinion that an act of the legisla- ture to authorize the sale of the land of a particular minor by his guardian cannot be easily reconciled with the spirit of the article in the Bill of Rights which we have just cited. It is true that the grant of such a license by the legislature to the guardian is intended as a privilege and a benefit to the ward. But by the law of the land no minor is capable of assenting to a sale of his real estate in such a man- ner as to bind himself. And no guardian is permitted by the same law to deter- mine wlien the estate of his ward ought and when it ought not to be sold. In the contemplation of the law, tlie one has not sufficient discretion to judge of the propriety and expediency of a sale of his estate, and the other is not to be entrusted with the power of judging. Such being 122 CONSTITUTIONAL LIMITATIONS. [CH. is nothing in the nature of the act of authorizing a sale to satisfy the lien, which requires that it should be performed by a judicial tribunal, or that it should be performed by a delegate rather than by the legislature itself. It is remedial in its nature, to give ef- fect to existing rights.^ The case showed the actual existence of debts, and indeed a judicial license for the sale of lands to satisfy them had been granted in New Hampshire before the sale was made. The decision was afterwards followed in a carefully con- sidered case in the same court.^ In each of these cases it is assumed that the legislature does not by the special statute deter- mine the existence or amount of the debts, and disputes concern- ing them would be determinable in the usual modes. Many other decisions have been made to the same effect.^ This species of legislation may perhaps be properly called pre- rogative remedial legislation. It hears and determines no rights ; it deprives no one of his property. It simply authorizes one's real estate to be turned into personal, on the application of the person representing his interest, and under such circumstances that the consent of the owner, if capable of giving it, would be presumed. It is in the nature of the grant of a privilege to one person, which at the same time affects injuriously the rights of no other.* » Wilkinson v. Leland, 2 Pet. 027, 660. Compare Brevoort b. Grace, 53 N. Y. 245. 2 Watkins v. Holman's Lessee, 16 Pet. 25, 60. See also Florentine v. Barton, 2 Wall. 210 ; Doe v. Douglass, 8 Blaokf. 10. 8 Thurston v. Thurston, 6 R. I. 296, 302 ; Williainson v. Williamson, 11 Miss. 715 ; McComb v. Gilkey, 29 Miss. 146 ; Boon V. Bowers, 30 Miss. 246 ; Stewart V. Griffith, 33 Mo. 13 ; Estep v. Hutchman, 14 S. & R. 435 ; Snowhill v. Snowhill, 17 N. J. Eq. 30 ; Dorsey v. Gilbert, 11 G. & J. 87; Norris v. Clymer, 2 Pa. St. 277; Sergeant v. Kuhn, 2 Pa. St. 893 ; Kerr v. Kitchen, 17 Fa. St. 433; Coleman v. Carr, 1 Miss. 258 ; Davison v. Johonnot, 7 Met. 388 ; Towle v. Forney, 14 N. Y. 423 ; Leggett V. Hunter, 19 N. Y. 445 ; Bre- voort V. Grace, 53 N. Y. 245 ; Gannett v. Leonard, 47 Mo. 205; Kibby v. Chet- wood's Adm'rs, 4 T. B. Monr. 91 ; Slie- han's Heirs v. Barnett's Heirs, 6 T. B. Monr. 594 ; Davis v. State Bank, 7 Ind. 316; Richardson v. Monson, 23 Conn. 94; Ward V. New England, &o. Co., 1 Cliff. 565 ; Sohier v. Massachusetts, &c. Hospi- tal, 8 Cush. 483 ; Lobrano v. Nelligan, 9 Wall. 295. Contra, Brenham v. Story, 39 Cal. 179. In Moore v. Maxwell, 18 Ark. 469, a special statute authorizing the ad- ministrator of one who held the mere naked legal title to convey to the owner of the equitable title was held valid. To the same effect is Reformed P. D. Church v. Mott, 7 Paige, 77 ; s. c. 82 Am. Dec. 618. A special act allowing the widow to sell lands of the deceased husband, subject to the approval of the probate judge, is valid. Bruce v. Bradshaw, 69 Ala. 860. In Stanley v. Colt, 5 Wall. 119, an act permitting the sale of real estate which had been devised to cliaritable uses was sustained, — no diversion of the gift being made. A more doubtful case is that of Linsley v. Hubbard, 44 Conn. 109 ; B.C. 26 Am. Rep. 431, in which it was held competent, on petition of tenant for life, to order a sale of lands for the benefit of all concerned, though against re- monstrance of owners of the reversion. * It would be equally competent for the legislature to authorize a person under legal disability — e. g. an infant — to con- vey his estate, as to authorize it to be conveyed by guardian. McComb v. Gil- key, 29 Miss. 146. CH. v.] POWEES EXERCISED BY LEGISLATIVE DEPARTMENT. 123 But a different case is presented when the legislature assumes to authorize a person who does not occupy a fiduciary relation to the owner, to make sale of real estate, to satisfy demands which he asserts, but which are not judicially determined, or for any other purpose not connected with the convenience or necessity of the owner himself. An act of the legislature of Illinois under- took to empower a party who had applied for it to make sale of the lands pertaining to the estate of a deceased person, in order to raise a certain specified sum of money which the legislature assumed to be due to him and another person, for moneys by them advanced and liabilities incurred on behalf of the estate, and to apply the same to the extinguishment of their claims. Now it is evident that this act was in the nature of a judicial de- cree, passed on the application of parties adverse in interest to the estate, and in effect adjudging a certain amount to be due them, and ordering lands to be sold for its satisfaction. As was well said by the Supreme Court of Illinois, in adjudging the act void : " If this is not the exercise of a power of inquiry into, and a determination of, facts between debtor and creditor, and that, too, ex parte and summary in its character, we are at a loss to understand the meaning of terms ; nay, that it is adjudging and directing the application of one person's property to another, on a claim of indebtedness, without notice to, or hearing of, the parties whose estate is divested by the act. That the exercise of such power is in its nature clearly judicial, we think too apparent to need argument to illustrate its truth. It is so self-evident from the facts disclosed that it proves itself." ^ 1 Lane v. Dorman, 4 HI. 238, 242 ; s. c. tracted to be made by the intestate. The 36 Am. Dec. 643. In Dubois i>. Mc- claims of the creditors of the intestate Lean, 4 McLean, 486, Judge Pope as- were to be established by judicial or other gumes that the case of Lane v. Dorman satisfactory legal proceedings, and, in decides that a special act, authorizing an truth, in the last case cited, the commis- executor to sell lands of the testator sioners were nothing more than special to pay debts against his estate, would administrators. The legislative depart- be unconstitutional. We do not so un- ment, in passing these acts, investigated derstand that decision. On the con- nothing, nor did an act which could be trary, another case in the same volume, deemed a judicial inquiry. It neither ex- Edwards V. Pope, p. 465, fully sustains amined proof, nor determined the nature the cases before decided, distinguishing or extent of claims ; it merel}' authorized them from Lane v. Dorman. But that the application of the real estate to the indeed is also done in the principal case, payment of debts generally, discriminat- where the court, after referring to similar ing in favor of no one creditor, and giving cases in Kentucky, say : *' These cases no one a preference over another. Not are clearly distinguished from the case so in the case before us ; the amount is at bar. The acts were for the benefit of investigated and ascertained, and the sale all the creditors of the estates, without is directed for the benefit of two persons distinction ; and in one case, in addition, exclusively. The proceeds are to be ap- for the purpose of perfecting titles con- plied to the payment of such claims and 124 CONSTITUTIOKAL LIMITATIONS. [CH. V. A case in harmony with the one last referred to was decided by the Supreme Court of Michigan. Under the act of Congress " for the relief of citizens of towns upon the lands of the United States, under certain circumstances," approved May 23, 1844, and which provided that the trust under said act should be conducted " under such rules and regulations as may be prescribed by the legislative authority of the State," &c., the legislature passed an act authorizing the trustee to give deeds to a person named there- in, and those claiming under him ; thus undertaking to dispose of the whole trust to the person thus named and his grantees, and authorizing no one else to be considered or to receive any relief. This was very plainly an attempted adjudication upon the rights of the parties concerned ; it did not establish regula- tions for the administration of the trust, but it adjudged' the trust property to certain claimants exclusively, in disregard of any rights which might exist in others ; and it was therefore declared to be void.^ And it has also been held that, whether a corpora- none other, for liabilities said to be in- curred, but not liquidated or satisfied; and those, too, created after the death of the intestate." See also Mason v. Wait, 5 m. 127, 134 ; Davenport o. Young, 16 111. 548 ; Rozier v. Fagan, 46 111. 404. The case of Estep o. Hutchman, 14 S. & K. 435, would seem to be more open to question on this point than any of the others before cited. It was the case of a special statute, authorizing the guardian of infant heirs to convey their lands in satisfaction of a contract made by their ancestor ; and the statute was sustained. Compare this with Jones v. Perry, 10 Yerg. 69, where an act authorizing a guardian to sell lands to pay the ancestor's debts was held void. 1 Cash, Appellant, 6 Mich. 193. The case of Powers v. Bergen, 6 N. Y. 358, is perhaps to be referred to another princi- ple than that of encroachment upon udi- cial authority. That was a case wliere the legislature, by special act, had under- taken to authorize the sale of property, not for the purpose of satisfying liens upon it, or of meeting or in any way pro- viding for the necessities or wants of the owners, but solely, after paying expenses, for the investment of the proceeds. It appears from tliat case that the executors under the will of the former owner held the lands in trust for a daughter of the testator daring her natural life, with a vested remainder in fee in her two chil- dren. The special act assumed to em- power them to sell and convey the complete fee, and apply the proceeds, Jirst, to the payment of their commis- sions. Costs, and expenses ; second, to the discharge of assessments, liens, charges, and incumbrances on the land, of which, however, none were shown to exist ; and third, to invest the proceeds and pay over the income, after deducting taxes and charges, to the daughter during her life, and after her decease to convey, assign, or pay over the same to the persons who would be entitled under the will. The court regarded this as an unauthorized interference with private property upon no necessity, and altogether void, as de- priving the owners of their property con- trary to the " law of the land." At the same time the authority of those cases, where it has been held that the legisla- ture, acting as the guardian and protector of those who are disabled to act for themselves by reason of infancy, lunacy, or other like cause, may constitutionally pass either general or private laws, under which an effectual disposition of their property might be made, was not ques- tioned. The court cite, with apparent approval, the cases, among others, of Bice I). Farkman, 16 Mass. 826 ; Cochran V. Van Surlay, 20 Wend. 365 ; and Wil- kinson v. Leland, 2 Pet. 627. The case ot CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 125 tion has been giiilty of abuse of authority under its charter, so as justly to subject it to forfeiture,^ and whether a widow is entitled to dower in a specified parcel of land,^ are judicial questions which cannot be decided by the legislature. In these cases there are necessarily adverse parties ; the questions that would arise are essentially judicial, and over them the courts possess jurisdic- tion at the common law ; and it is presumable that legislative acts of this character must have been adopted carelessly, and without a due consideration of the proper boundaries which mark the separation of legislative from judicial duties.^ As well might the Ervine's Appeal, 16 Pa. St. 256, was similar, in Uie principles involved,' to Powers V. Bergen, and was decided in the same way. See also Kneass's Appeal, 31 Pa. St. 87; Maxwell v. Goetscliius, 40 N. J. 383 ; s. c. 29 Am. Eep. 242, and compare with Ker «. Kitchen, 17 Pa. St. 433; Martin's Appeal, 23 Pa. St. 433; Hegarty's Appeal, 75 Pa. St. 503 ; Tharp V. Fleming, 1 Houston, 680. There is no constitutional objection to a statute which transfers the mere legal title of a trustee to the beneficiary. Reformed P. D. Church v. Mott, 7 Paige, 77 ; s. c. 32 Am. Dec. 613. 1 State V. Noyes, 47 Me. 189 ; Camp- bell V. Union Banii, 6 How. (Miss.) 661; Canal Co. v. Railroad Co., 4 G. & J. 1, 22 ; Regents of University i>. Williams, 9 G. & J. 365. In Miners' Bank of Dubuque V. United States, 1 Morris, 482, a clause in a charter authorizing the legislature to repeal it for any abuse or misuser of cor- porate privileges was held to refer the question of abuse to the legislative judg- ment. In Erie & North East R. R. Co. V. Casey, 26 Pa. St. 287, on the other hand, it was held that the legislature could not conclude the corporation by its' repealing act, but that the question of abuse of corporate authority would be one of fact to be passed upon, if denied, by a jury, so that the act would be valid or void as the jury should find. Com- pare Flint & Fentonville P. R. Co. v. Woodhull, 25 Mich. 99 ; s. o. 12 Am. Rep. 2.33. in which it was held that the reser- vation of a power to repeal a charter for violation of its provisions necessarily presented a judicial question, and the repeal must be preceded by a proper ju- dicial finding. In Carey v. Giles, 9 Ga. 258, the appointment by the legislature of a receiver for an insolvent bank was sus- tained ; and in Hindman v. Piper, 60 Mo. 292, a legislative appointment of a trustee was also sustained in a peculiar case. In Lothrop V. Steadman, 42 Conn. 583, the power of the legislature as an administra- tive measure to appoint a trustee to take charge of and manage the affairs of a corporation whose charter had been re- pealed, was afiirmed. For a similar prin- ciple see Albertson v. Landon, 42 Conn. 209. And see post, p. 447. 2 Edwards v. Pope, 4 111. 465. ' The unjust and dangerous character of legislation of this description is well stated by the Supreme Court of Pennsyl- vania : " When, in the exercise of proper legislative powers, general laws are enact- ed which bear, or may bear, on the whole community, if they are unjust and against the spirit of the Constitution, the whole community will be interested to procure their repeal by a voice potential. And that is the great security for just and fair legislation. But when individuals are selected from the mass, and laws are enacted affecting their property, without summons or notice, at the instigation of an interested party, who is to stand up for them, thus isolated from the mass, in injury and injustice, or where are they to seek relief from such acts of despotic power f They have no refuge but in the courts, the only secure place for deter- mining conflicting rights by due course of law. But if the judiciary give way, and in the language of the Chief Justice in Greenough v. Greenough, in 11 Pa. St. 489, 'confesses itself too weak to stand against the antagonism of the legislature and the bar,' one independent co-ordinate branch of the government will become the subservient handmaid of another, and a quiet, insidious revolution be effect- ed in the administration of the govern- 126 CONSTITUTIONAL LIMITATIONS. [ca V. legislature proceed to declare that one man is indebted to another in a sum specified, and establish by enactment a conclusive de- mand against him.^ We have elsewhere referred to a number of cases where statutes have been held unobjectionable which validated legal proceedings, notwithstanding irregularities apparent in them.^ These statutes may as properly be made applicable to judicial as to ministerial proceedings ; and although, when they refer to such proceedings, they may at first seem like an interference with judicial authority, yet if they are only in aid of judicial proceed- ings, and tend to their support by precluding parties from taking advantage of errors which do not affect their substantial rights, they cannot be obnoxious to the charge of usurping judicial power. The legislature does, or may, prescribe the rules under which the judicial power is exercised by the courts ; and in doing so it may dispense with any of those formalities which are not essential to the jurisdiction of the court ; and whatever it may dispense with by statute anterior to the proceedings, we believe it may also dispense with by statute after the proceedings have been taken, if the court has failed to observe any of those for- malities. But it would not be competent for the legislature to authorize a court to proceed and adjudicate upon the rights of parties, without giving them an opportunity to be heard before it ; and, for the same reason, it would be incompetent for it, by retro- spective legislation, to make valid any proceedings which had been had in the courts, but which were void for want of jurisdic- tion over the parties. Such a legislative enactment would be doubly objectionable : first, as an exercise of judicial power, since, the proceedings in court being void, it would be the statute alone which would constitute an adjudication upon the rights of the parties ; and second, because, in all judicial proceedings, notice to parties and an opportunity to defend are essential, — both of which they would be deprived of in such a case.^ And for like ment, whilst its form on paper remains » In McDaniel ». Correll, 19 HI. 226, it the same." Ervine's Appeal, 16 Pa. St. appeared that a statute had been passed 256, 268. to make valid certain legal proceedings 1 A statute is void which undertakes by which an alleged will was adjudged to miike railroad companies liable for the void, and which were had against non- expense of coroners' inquests, and of the resident defendants, over whom the courts burial of persons dying on the cars, or had obtained no jurisdiction. The court killed by collision or other accident occur- say: "If it was competent for the legis- ring to the cars, irrespective of any ques- lature to make a void proceeding vali^, tion of negligence. Ohio & M. K. R. Co. then it has been done in this case. Upon V. Lackey, 78 111. 65 j 8. o. 20 Am. Rep. this question we cannot for a moment 259. doubt or hesitate. They can no more im- " ^eepost, pp. 456-469. part a binding efficacy to a void proceed- CH. v.] POWERS EXEECISED BY LEGISLATIVE DEPARTMENT. 127 reasons a statute validating proceedings had before an intruder into a judicial ofi&ce, before whom no one is authorized or required to appear, and who could have jurisdiction neither of the parties nor of the subject-matter, would also be void.^ ing, than they can take one man's prop- erty from him and give it to anotlier. Indeed, to do the one is to accomplish the other. By the decree in this case the will in question, was declared void, and, con- sequently, if effect be given to the decree, the legacies given to those absent defend- ants by the will are taken from them and given to others, according to our statute of descents. Until the passage of the act in question, they were not bound by the verdict of the jury in tliis case, and it could not form the basis of a valid decree. Had the decree been rendered before the passage of the act, it would have been as competent to make that valid as it was to validate the antecedent proceedings upon which alone the decree could rest. The want of jurisdiction over .the defendants was as fatal to the one as it could be to the other. If we assume the act to be valid, then the legacies which before belonged to the legatees have now ceased to be theirs, and this result has been brought about by the legislative act alone. The effect of the act upon them is precisely the same as if it had declared in direct terms that the legacies bequeathed by this will to these defendants should not go to them, but should descend to the heirs-at-law of the testator, according to our law of descents. This it will not be pretended that they could do directly, and they had no more authority to do it indirectly, by making proceedings binding upon them which were void in law." See, to the same ef- fect, Richards v. Rote, 68 Pa. St. 248; Pryor v. Downey, 50 Cal. 388 ; s. c. 19 Am. Rep. 656; Lane v. Nelson, 79, Pa. St. 407; Shonk v. Brown, 61 Pa. St. 320; Spragg v. Shrivcr, 25 Pa. St. 282; Israel v. Arthur, 7 Col. 5. 1 In Denny o. Mattoon, 2 Allen, 861, a judge in insolvency had made certain orders in a case pending in another juris- diction, and which the courts subsequently declared to be void. The legislature then passed an act declaring that they "are hereby confirmed, and the same shall be taken and deemed good and valid in law, to all intents and purposes whatsoever." On the question of the validity of this act the court say : " The precise question is, whether it can be held to operate so as to confer a jurisdiction over parties and pro- ceedings which it has been judicially de- termined did not exist, and give validity to acts and processes which have been adjudged void. The statement of this question seems to us to suggest the ob- vious and decisive objection to any con- struction of the statute which would lead to such a conclusion. It would be a di- rect exercise by the legislature of a power in its nature clearly judicial, from the use of which it is expressly prohibited by the thirtieth article of the Declaration of Rights. The line which marks and sepa- rates judicial from legislative duties and functions is often indistinct and uncertain, and it is sometimes difficult to decide within which of the two classes a par- ticular subject falls. All statutes of a declaratory nature, which are designed to interpret or give a meaning to previous enactments, or to confirm the rights of parties either under their own contracts or growing out of the proceedings of courts or public bodies, which lack legal valid- ity, involve in a certain sense the exercise of a judicial power. They operate upon subjects which might properly come within the cognizance of the courts and form the basis of judicial consideration and judgment. But they may, neverthe- less, be supported as being witliin the le- gitimate sphere of legislative action, on the ground that they do noj, declare or de- termine, but only confirm rights; that they give effect to the acts of parties ac- cording to their intent ; that they furnish new and more efficacious remedies, or create a more beneficial interest or tenure, or, by supplying defects and curing infor- malities ill the proceedings of courts, or of public officers acting within the scope of their authority, they give effect to acts to which there was the express or implied assent of the parties interested. Statutes which are intended to accomplish such purposes do not necessarily invade the 128 CONSTITUTIONAL LIMITATIONS. [CH. V Legislative Divorces. There is another class of cases in which it would seem that action ought to 'be referred exclusively to the judicial tribunals, but in respect to which the prevailing doctrine seems to be that the legislature has complete control unless specially restrained by the State constitution. The granting of divorces from the bonds of matrimony was not confided to the courts in England, and from the earliest days the Colonial and State legislatures in this country have assumed to possess the same power over the subject which was possessed by the Parliament, and from time to time they have passed special laws declaring a dissolution of the bonds of matrimony in special cases. Now it is clear that province, or directly interfere with the ac- tion of j udicial tribunals. But if we adopt the broadest and most comprehensive view of the power of the legislature, we must place some limit beyond which the authority of the legislature cannot go without trenching on the clear and well- defined boundaries of judicial power." " Although it may be difficult, if not im- possible, to lay down any general rule whicii may serve to determine, in all cases, whether the limits of constitutional restraint are overstepped by the exercise by one branch of the government of pow- ers exclusively delegated to another, it certainly is practicable to apply to each case as it arises some test by which to ascertain whether this fundamental prin- ciple is violated. If, for example, t)ie practical operation of a statute is to de- termine adversary suits pending between party and party, by substituting in place of the well-settled rules of law the arbi- trary will of the legislature, and thereby controlling the action of the tribunal be- fore which the suits are pending, no one can doubt that it would be an unauthor- ized act of legislation, because it directly infringes on the peculiar and appropriate ifunctions of the judiciary. It is the ex- clusive province of courts of justice to apply established principles to cases within their jurisdiction, and to enforce their decisions by rendering judgments and executing them by suitable process. The legislature have ho power to inter- fere with this jurisdiction in such manner as to change the decision of cases pending before courts, or to impair or set aside their judgments, or to take cases out of the settled course of judicial proceeding. It is on this principle that it has been held that the legislature have no power to grant a new trial or direct a rehearing of a cause which has been once judicially settled. The right to a review, or to try anew facts which have been determined by a verdict or decree, depends on fixed and well-settled principles, which it is the duty of the court to apply in the exercise of a sound judgment and discretion. These cannot be regulated or governed by legislative action. Taylor i'. Place, 4 R. i. 824, 337 ; Lewis v. Webb, 3 Me. 326 : Dechastellux v. Fairchild, 15 Pa. St. 18. A fortiori, an act of the legislature cannot set aside or amend final judgments or decrees." . The court further consider the general subject at length, and adjudge the particular enactment under consider- ation void, both as an exercise of judicial authority, and also because, in declaring valid the void proceedings in insolvency against the debtor, under which assignees had been appointed, it took away from the debtor his property, " not by due pro- cess of law or the law of the land, but by an arbitrary exercise of legislative will." See, further. Griffin's Executor v. Cun- ningham, 20 Grat. 109 ; State v. Doherty, 60 Me. 604. In proceedings by tenants for life, the estate in remainder was or- dered to be sold ; there was at the time no authority for ordering such a sale. It was held to be void, and incapable of confirma- tion. Maxwell v. Goetschius, 40 N. J. 888 ; B. c. 29 Am. Rep. 242. CH. v.] POWERS EXEECISED BY LEGISLATIVE DEPAETMENT. 129 " the question of divorce involves investigations which are prop- erly of a judicial nature, and the jurisdiction over divorces ought to be confined exclusively to the judicial tribunals, under the lim- itations to be prescribed by law ; " ^ and so strong is the general conviction of this fact, that the people in framing their constitu- tions, in a majority of the States, have positively forbidden any such special laws.^ 1 2 Kent, 106. See Levins v. Sleator, 2 Greene (Iowa), 607. 2 The following are constitutional pro- visions : — Alabama ; Divorces from the bonds of matrimony shall not be granted but in the cases by law provided for, and by suit in chancery ; but decrees in chan- cery for divorce shall be final, unless ap- pealed from in the manner prescribed by law, within three months from the date of the enrolment thereof. Arkansas: The General Assembly shall not have power to pass any bill of divorce, but may pre- scribe by law the manner in which such cases may be investigated in the courts of justice, and divorces granted. California : Ho divorce shall be granted by the legis- lature. The provision is the same or sim- ilar in Iowa, Indiana, Maryland, Michigan, Minnesota, Nevada, Nebraska, Oregon,^ New Jersey, Texas, and Wisconsin. Flor- ida: Divorces from the bonds of matri- mony shall not be allowed but by the judgment of a court, as shall be prescribed by law. Georgia: The Superior Court shall hare exclusive jurisdiction in all cases of divorce, both total and partial. Illinois; The General. Assembly shall not pass . . . special laws ... for granting divorces. Kansas ; And power to grant divorces is vested in the District Courts subject to regulations by law. Kentucky : The General Assembly shall have no power to grant divorces, . . . but by gen- eral laws shall confer such powers on the courts of justice. Louisiana: The Gen- eral Assembly shall not pass any local or special law on the following specified objects: . . . Granting divorces. Massa- chusetts ; All causes of marriage, divorce, and alimony . . . shall be heard and de- termined by the Governor and Council, until the legislature shall by law make other provision. Mississippi: Divorces from the bonds of matrimony shall not be granted but in cases provided for by law, and by suit in chancery. Missouri: The General Assembly shall not pass any 9 local or special law . . . granting divorces. In Colorado the provision is the same. New Hampshire: All causes of marriage, divorce, and alimony . . . shall be heard and tried by the Superior Court, until the legislature shall by law make other pro- vision. New York: . . . nor. shall any divorce be granted otherwise than by due judicial proceedings. North Carolina : The General Assembly shall have power to pass general laws regulating divorce and . alimony, but shall not have power to grant a divorce or secure alimony in any par- ticular case. Ohio : The General Assem- bly shall grant no divorce nor exercise any judicial power, not herein expressly conferred. Pennsylvania : The legislature shall not have power to enact laws annul- ling the contract of marriage in any case where by law the courts of this Common- wealth are, or hereafter may be, cm- powered to decree a divorce. Tennessee: The legislature shall have no power to grant divorces, but may authorize the courts of justice to grant them for such causes as may be specified by law ; but such laws shall be general and uniform in their operation throughout the State. Virginia: The legislature shall confer on the courts the power to grant divorces, . . . but shall not by special legislation grant relief in such cases. West Virginia : The Circuit Courts shall have power, under such general regulations as may be prescribed by law, to grant divorces, . . . but relief shall not be granted by special legislation in such cases. Under the Con- stitution of Michigan, it was held that, as the legislature was prohibited from grant ing divorces, they could pass no special act authorizing the courts to divorce for a cause which was not a legal cause for divorce under the general laws. Teft v. Teft, 3 Mich. 67. See also Clark v. Clark, 10 N. H. 380 ; Simonds v. Simonds, 103 Mass. 672 ; 8. c. 4 Am. Hep. 676. The case of White V. White, 105 Mass. 326, was pe- culiar. A woman procured a divorce from 130 CONSTITUTIONAL LIMITATIONS. [CH. V. Of the judicial decisions oa the subject of legislative power over divorces there seem to be three classes of cases. The doc- trine of the first class seems to be this: The granting of a divorce may be either a legislative or a judicial act, according as the legislature shall refer its consideration to the courts, or reserve it to itself. The legislature has the same full control over the status of husband and wife which it possesses over the other domestic relations, and may permit or prohibit it, accord- ing to its own views of what is for the interest of the parties or the good of the public. In dissolving the relation, it proceeds upon such reasons as to it seem sufficient ; and if inquiry is made into the facts of the past, it is no more than is needful when any change, of the law is contemplated, with a view to the establish- ment of more salutary rules for the future. The inquiry, there- fore, is not judicial in its nature, and it is not essential that there be any particular finding of misconduct or unfitness in the par- ties. As in other cases of legislative action, the reasons or the motives of the legislature cannot be inquired into ; the relation which the law permitted before is now forbidden, and the parties are absolved from the obligations growing out of that relation which continued so long as the relation existed, but which neces- sarily cease with its termination. Marriage is not a contract, but a status ; the parties cannot have vested rights of property in a domestic relation ; therefore the legislative act does not come under condemnation as depriving parties of rights contrary to the law of the land, but, as in other cases within the scope of the legislative authority, the legislative will must be regarded as sufficient reason for the rule which it promulgates.^ her husband, and by the law then in Starr v. Pease, 8 Conn. 541. Ontheques- force he was prohibited from marrying tion whether a divorce is necessarily a again except upon leave procured from judicial act, the court say : " A further the court. He did marry again, however, objection is urged against tliis act ; viz., and the legislature passed a special act to that by the new constitution of 1818, affirm this marriage. In pursuance of a tliere is an entire separation of the legis- requirement of the constitution, jurisdic- lative and judicial departments, and that tion of all cases of marriage and divorce the legislature can now pass no act or had previously been vested by law in the resolution not clearly warranted by that courts. Held, that this took from the constitution ; that the constitution is a legislature all power to act upon the sub- grant of power, and not a limitation of ject in special cases, and the attempt to powers already possessed ; and, in short, validate the marriage was consequently that tliere is no reserved power in the ineffectual. That the legislature possesses legislature since the adoption of this con- authority to validate marriages and to stitution. Precisely the opposite of this give legitimacy to the children of invalid is true. From the settlement of the State marriages, where the constitution has not -there have been certain fundamental rules taken it away, see Andrews v. Page, 3 by which power has been exercised. Heisk. 653 ; post, pp. 458, 469. These rules were embodied in an instru- 1 The leading case on this subject is nient called by some a constitution, by CH. v.] POWERS EXERCISED BY EEGISLATIVE DEPARTMENT. 131 Tlie second class of cases to which we have alluded hold that divorce is a judicial act in those cases upon which the general laws confer on the courts power to adjudicate ; and that conse- quently in those cases the legislature cannot pass special laws, but its full control over the relation of marriage wiU leave it at liberty to grant divorces in other cases, for such causes as shall appear to its wisdom to justify them.^ others a charter. All agree that it was the first constitution ever cqade in Con- necticut, and made, too, by the people themselves. It gave very extensive pow- ers to the legislature, and left too much (for it left everything almost) to their will. The constitution of 1818 proposed to, and in fact did, limit that will. It adopted certain general principles by a preamble called a Declaration of Rights; provided for the election and appoint- ment of certain organs of the government, such 83 the legislative, executive^ and judicial departments ; and imposed upon them certain restraints. It found the State sovereign and independent, with a legisla- tive power capable of making all laws necessary for the good of the people, not -forbidden by the Constitution of the United States, nor opposed to the sound maxims of legislation ; and it left them in the same condition, except so far as limitations were provided. There is now and hns been a law in force on the sub- ject of divorces. Tlie law was passed one hundred and thirty years ago. It pro- vides for divorces a vinculo matrimonii in four cases ; viz., adultery, fraudulent con- tract, wilful desertion, and seven years' absence unheard of. The law has re- mained in substance the same as it was when enacted in 1667. During all this period the legislature has interfered like the Parliament of Great Britain, and passed special acts of divorce a vinculo matrimonii ; and at almost every session since the Constitution of the United States went into operation, now forty-two years, and for the thirteen years of the existence of the Constitution of Connec- ticut, such acts have been, in multiplied cases, passed and sanctioned by the con- stituted authorities of our State. We are not at liberty to inquire, into t}ie wisdom of our existing law on this subject; nor into the expediency of such :frequent in- terference by the legislature. We can only inquire into the constitutionality of the act under consideration. The power is not prohibited either by the Constitu- tion of the United States or by that of this State. In view of the appalling con- sequences of declaring the general law of the State or the repeated acts of our legis- lature unconstitutional and void, conse. quences easily conceived, but not easily expressed, — such as bastardizing the is- sue and subjecting the parties to punish- ment for adultery, — the , court should come to the result only on a solemn con- viction that their oaths of office and these constitutions imperiously demand it. Feel- ing myself no such conviction, I cannot pronounce the act void." Per Daggett, J. ; Hosmer, Ch. J., and Bissell, J., con- curring. Peters, J., dissented. Upon the same subject see Crane w. Meginnis, 1 G. & J. 463 ; Wright v. Wright, 2 Md. 429 ; Gaines v. Gaines, 9 B. Monr. 295 ; Cabell II. Cabell, 1 Met. (Ky.) 319; Dickson v. Dickson, lYerg. 110; Melizet's Appeal, 17 Pa. St. 449 ; Cronise v. Cronise, 54 Pa. St. 255 ; Adams v. Palmer, 61 Me. 480; Towns9nd v. Griffin, 4 Harr. 440; Noel V. Ewing, 9 Ind. 87; and the ex- amination of the whole subject by Mr. Bishop, in his work on Marriage and Divorce. A territorial legislature having power ^covering all rightful subjects of legislation could grant a divorce. May- nard v. Hill, 125 U. S. 190. 1 Levins w. Sleator, 2 Greene (Iowa), 604; Opinions of Judges, 16 Me. 479; Adams v. Palmer, 51 Me. 480. See also Townsend v. Griffin, 4 Harr. 440. In a well-reasoned case in Kentucky, it was held that a legislative divorce obtained on the application of one of the parties while suit for divorce was pending in a court of competent jurisdiction would not aSect the rights to property of the other, growing out of the relation. Gaines v. Gaines, 9 B. Monr. 295. A statute per- mitting divorces for ofiences committed 132 CONSTITUTIONAL LIMITATIONS. [CH. V. A third class of cases deny altogether the authority of these special legislative enactments, and declare the act of divorce to be in its nature judicial, and not properly within the province of the legislative power.i The most of these decisions, however, lay more or less stress upon clauses in the constitutions other than those which in general terms separate the legislative and judicial functions, and some of them would perhaps have been differently decided but for those other clauses. But it is safe to say that the general sentiment in the legal profession is against the rightfulness of special legislative divorces ; and it is believed that, if the question could originally have been considered by the courts, unembarrassed by any considerations of long acquiescence, and of the serious consequences which must result from affirming their unlawfulness, after so many had been granted and new re- lations formed, it is highly probable that these enactments would have been held to be usurpations of judicial authority, and we should have been spared the necessity for the special constitu- tional provisions which have since been introduced. Fortunately these provisions render the question now discussed of little prac- tical importance ; at the same time that they refer the decision upon applications for divorce to those tribunals which must proceed upon inquiry, and cannot condemn without a hearing.^ The force of a legislative divorce must in any case be confined to a dissolution of the relation ; it can only be justified on the before its passage is not an ex post facto in, unless by misbehavior they subject law in the constitutional sense. Jones v. themselves to a forfeiture of the right. Jones, 2 Overton, 2 ; s. c. 5 Am. Deo. And if the legislature can annul tlie rela- 645. ' tion in one case, without any finding that 1 Brigham v. Miller, 17 Ohio, 445 ; a breach of the marriage contract has Clark V. Clark, 10 N. H. 380 ; Ponder v. been committed, then it would seem that Graham, 4 Fla. 23 ; State v. Fry, 4 Mo. they might annul it in every case, and 120; Bryson v. Campbell, 12 Mo. 498; even prohibit all parties from entering Bryson v. Bryson, 17 Mo. 690 ; Same into the same relation in the future. The V. Same, 44 Mo. 232. See also Jones recognition of a full and complete control V. Jones, 12 Fa. St. 350, 354. Under of the relation in the legislature, to be the Constitution of Massachusetts, the exercised at its will, leads inevitably to power of the legislature to grant di- this conclusion ; so that, under the " right- vorces is denied. Sparhawk v. Sparhawk, ful powers of legislation " which our con- 116 Mass. 315. See clause in constitu- stitutions confer upon the legislative tion, ante, p. 129, note 2. Where a court is department, a relation essential to organ- given appellate jurisdiction in alt cases, ized civil society might be abrogated it is not' competent by statute to forbid entirely. Single legislative divorces are its reversing a decree of divorce. Tier- but single steps towards this barbarism ney v. Tierney, 1 Wash. Ter. 568. See which the application of the same prin- Nichols V. Griffin, 1 Wash. Ter. 374. ciple to every individual case, by a gen- ^ If marriage is a matter of right, then eral law, would necessarily bring upon us. it would seem that any particular mar- See what is said by the Supreme Court riage that parties might lawfully form of Missouri in Bryson ». Bryson, 17 Mo. they must have a lawful right to continue 690, 694. CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 133 ground that it merely lays down a rule of conduct for the parties to observe towards each other for the future. It cannot inquire into the past, with a view to punish the parties for their offences against the marriage relation, except so far as the divorce itself can be regarded as a punishment. It cannot order the payment of alimony, for that would be a judgment ; ^ it cannot adjudge upon conflicting claims to property between the parties, but it must leave all questions of this character to the courts. Those rights of property which depend upon the continued existence of the relation will be terminated by the dissolution, but only as in any other case rights in the future may be incidentally aflected by a change in the law.^ Legislative Encroachments upon Executive Power. If it is difficult to point out the precise boundary which sepa- rates legislative from judicial duties, it is still more difficult to discriminate, in particular cases, between what is properly legis- lative and what is properly executive duty. The authority that makes the laws has large discretion in determining the means through which they shall be executed ; and the performance of many duties which they may provide for by law they may refer either to the chief executive of the State, or, at their option, to any other executive or ministerial officer, or even to a person specially named for the duty.' "What can be definitely said on this subject is this : That such powers as are specially conferred by the constitution upon the governor, or upon any other specified officer, the legislature cannot require or authorize to be performed by any other officer or authority ; and from those duties which the constitution requires of him he cannot be excused by law.* 1 Crane v. Meginnis, 1 G. & J. 463 ; should be ex officio the members. The Potter's Dwarris on Statutes, 486 ; post. legislature may regulate appointment to p. 499, note. statutory offices : People v. Osborne,? Col. ' Starr v. Pease, 8 Conn. 641. 605 ; may provide a board of civil service ^ This is affirmed in the case of commissioners to prescribe qualifications Bridges v. Shallcross, 6 W. Va. 662. The of all officers not provided for by the constitution of that State provides that constitution: Opinion of Justices, 138 the governor shall nominate, and by and Mass. 601 ; may appoint a State board, with the advice and consent of the Sen- if constitution does not expressly em- ate appoint, all officers whose offices are power the governor to do so. People v. established by the constitution or shall be Preeman, 22 Pac. Rep. 173 (Cal.). See created by law, and whose appointment Hovey v. State, 21 N. B. Rep. 890 (Ind.) ; or election is not otherwise provided for, Biggs v. McBride, 21 Pac. Rep. 878(Oreg.); and that no such officer shall be appointed State :;. Covington, 29 Ohio St. 102. or elected by the legislature. The court * Attorney-General v. Brown, 1 Wis. decided that this did not preclude the 513. " Whatever power or duty is ex- legislature from creating a board of pub- pressly given to, or imposed upon, the lie works of which the State officers executive department, is altogether free 134 CONSTITUTIONAL LIMITATIONS. [CH. V. But other powers or duties the executive cannot exercise or assume except by legislative authority, and the power which in its discretion it confers it may also in its discretion withhold, or (rom the interference of the other branches o^ the government. Especially is this the case where the subject is committed to the discretion of the chief executive offi- cer, either by tlie constitution or by the laws. So long as the power is vested in him, it is to be by him exercised, and no other branch of tlie government can con- trol its exercise." Under the Constitu- tion of Ohio, which forbids the exercise of any appointing power by the legisla- ture, except as therein authorized, it was held that the legislature could not, by law, constitute certain designated persons a State board, with power to appoint com- missioners of the State House, and direc- tors of the penitentiary, and to remove such directors for cause. State v. Ken- non, 7 Ohio St. 646. By' the Indiana Con- stitution all officers whose appointment is not otherwise provided for, shall be chosen in such manner as shall be pre- scribed by law. The power to ordain the " manner " does not give the legisla- ture power to appoint. State v. Denny, 21 N. K. Kep. 252,274 (Ind.) ; Evansville V. State, id. 267. And see Davis v. State, 7 Md. 151 ; also cases referred to in pre- ceding note. As to what are public offi- cers, see State u. Stanley, 66 N. C. 59 ; 8. c. 8 Am. Rep. 488. An appointment to office was said, in Taylor v. Common- wealth, 3 J. J. Marsh. 401, to be intrinsi- cally an executive act. In a certain sense this is doubtless so, but it would not fol- low that the legislature could exercise no appointing power, or could confer none on others than the chief executive of the State. Where the constitution contains no negative words to limit the legislative authority in this regard, the legislature in enacting a law must decide for itself what are the suitable, convenient, or necessary agencies for its execution, And the authority of the executive must be limited to taking care that the law is ex- ecuted by such agencies. See Baltimore V. State, 15 Md. 376. Where the governor has power to re- move an officer for neglect of duty, he is the sole judge whether the duty has been neglected. State v. Doherty, 25 La:. Ann. 119 ; 8. c. 13 Am. Rep. 131. The courts cannot review his action if it is taken af- ter a hearing : State v. Hawkins, 44 Ohio St. 98 ; but he' must affi)rd an opportunity for defence. DuUam v. Willson, 53 Mich. 392. Contm, unless the right is expressly secured to the officer. Donahue v. Will Co., 100 III. 94, and cases cited. If the governor has power to appoint' with the consent of Senate, and to re- move, he may remove without such con- sent. Lane v. Com , 103 Va.. St. 481 ; Harman v. Harwood, 58 Md. 1. See, as to discretionary powers, ante, pp. 54, 55, notes. The executive, it ha^ been decided, has power to pardon for contempt of court. State V. Sauvinet, 24 La. Ann. 119 ; s. c. 13 Aui. Rep. 115. A general power to pardon may be exercised before as well as after conviction. Lapeyre v. United States, 17 Wall. 191 ; Dominick v. Bow- doin, 44 6a. 857 ; Grubb v. Bullock, 44 Ga. 379. The President's power to par- don does not extend to the restoration of property which has been judicially for- feited. Knote V. United States, 10 Ct. of CI. 397, and 95 U. S. 149 ; Osborn v. United States, 91 U. S. 474. The par- don may be granted by general proc- lamation. Carlisle v. United States, 16 Wall. 147 ; Lapeyre v. United States, 17 Wall. 191. The delivery of a pardon to the prison warden, makes it operative. Ex parte Powell, 73 Ala. 517. One re- ceiving a full pardon from the President cannot afterwards be required by law to establish loyalty as a condition to the as- sertion of legal rights. Carlisle v. United States, 16 Wall. 147. Nor be prosecuted in a civil adtion for the same acts for which he is parctoned. United States v. McKee, 4 Dill. 128. Pardon removes all disabilities resulting from conviction, and may be granted after sentence executed. State V. Foley, 15 Nev. 64 ; s. c. 37 Am. Rep. 458 ; Edwards v. Com., 78 Va. 39 ; State V. Dodson, 16 S. C. 453. But a mere executive order to discharge from Custody is not such a pardon. State v, Kirschner, 23 Mo. App. 349. It does not release from the obligation to pay costs of the prosecution. In re Boyd, 34 Kan. 570 J Smith v. State, 6 Left, 637. CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 135 confide to other hands.^ Whether in those cases where power is given by the constitution to the governor, the legislature have the same authority to make rules for the exercise of the power that they have to make rules to govern the proceedings in the courts, may perhaps be a question.^ It would seem that this must 1 " lb deciding tliis question [as to the authority -of the govepnor], recurrence must be had to the constitution. That furnishes the only rule by which the court can be governed. That is the char- ter of the governor's authority. All the powers delegated to him by or in accord- ance with that instrument, he is entitled to exercise, and no others. The constitu- tion is a limitation upon the powers of the legislative department of the govern- ment, but it is to be regarded as a grant of powers to the other departments. Neither the execuUve nor the judiciary, therefore, can exercise any authority or power except such as is clearly granted by the constitution." Field v. People, 8 111.79,80. 2 Whether the legislature can consti- tutionally remit a fine, when the pardon- ing power is vested in the governor by the constitution, has been made a ques- tion ; and the cases of Haley v. Clarke, 26 Ala. 439, and People v. Bircham, 12 Cal. 50, are opposed to each other upon the point. If the fine is payable to the State, perhaps the legislature should be consid- ered as having the same right to dis- charge it that they would have to release any other debtor to the State from his obligation. In Indiana the Supreme Court cannot be invested with power to grant reprieves. Butler v. State, 97 Ind. 373. The Secretary of the Treasury may remit penalties for breach of reve- nue laws. The Laura, 114 U. S. 411. In Michigan a judge cannot by suspend- ing sentence indefinitely practically par- don a prisoner. People v. Brown, 54 Mich. 16. An act allowing a prisoner to go on parol, but in legal control of prison managers and subject to recall, is valid. State V. Peters, 43 Ohio St. 629. In Morgan v. Bufiington, 21 Mo. 549, it was held that the State auditor was not obliged to accept as conclusive the certificate from the Speaker of the House as to, the sum due a member of the House for attendance upon it, but that he might lawfully inquire whether the amount had been actually earned by attendance or not. The legislative rule, therefore, can- not go to the extent of compelling an ex- ecutive ofScer to do something else than his duty, under any pretence of regula- tion. The power to pardon offenders is vested by the several State constitutions in the governor. It is not, however, a power which necessarily inheres in the executive. State v. Dunning, 9 Ind. 20. And several of the State constitutions have provided that it shall be exercised under such regulations as shall be pre- scribed by law. There are provisions, more or less broad to this purport in those of Kansas, Florida, Alabama, Arkansas, Texas, Mississippi, Oregon, Indiana, Iowa, and Virginia. In State v. Dunning, 9 Ind. 20, an act of the legislature requiring the applicant for the remission of a fine or for- feiture to forward to the governor, with his application, the opinion of certain county ofilcers as to the propriety of the remission, was sustained as an act within the power conferred by the constitution upon the legislature to prescribe regula- tions in these cases. And see Branham V. Lange, 16 Ind. 497. The power to re- prieve is not included in the power to pardon. Ex parte Howard, 17 N. H. 545. Contra, Ex parte Fleming, 60 Miss. 910. It has been decided that to give parties, who have been convicted and fined th& benefit of the insolvent laws is not an exercise of the pardoning power. Ex parte Scott, 19 Ohio St. 581. And where the constitution provided that "In all criminal and penal cases, except those of treason and impeachment, [the gover- nor] shall have power to grant pardons after conviction, and remit fines and for- feitures," &c., it was held that this did not preclude the legislature from passing an act of pardon and amnesty for parties liable to prosecution, but not yet con- victed. State V. Nichols, 26 Ark. 74; s. c. 7 Am. Bep. 600. An act approved by the governor vacating a conviction operates as a pardon. People v. Stewart, 1 Idaho, 646. Pardons may be made con- 136 CONSTITUTIONAL LIMITATIONS. [CH. T. depend generally upon the nature of the power, and upon the question whether the constitution, in conferring it, has furnished a sufficient rule for its exercise. Where complete power to par- don is conferred upon the executive, it may be doubted if the legislature can impose restrictions under the name of rules or regulations ; but where the governor is made commander-hi-chief of the military forces of the State, it is obvious that his authority must be exercised under such proper rules as the legislature may prescribe, because the military forces are themselves under the control of the legislature, and military law is prescribed by that department. There would be this clear limitation upon the power of the legislature to prescribe rules for the executive department ; that they must not be such as, under pretence of regulation, divest the executive of, or preclude his exeropng, any of his constitutional prerogatives or powers. Those matters which the constitution specifically confides to him the legislature cannot directly or indirectly take from his control. And on the other hand the legislature cannot confer upon him judicial authority ; such as the authority to set aside the registration of voters in a municipality ; ^ or clothe him with any authority, not executive in its nature, which the legislature itself, under the constitution, is restricted from exercising.^ It may be proper to say here, that the executive, in the proper discharge of his duties under the constitution, is as independent of the courts as he is of the legislature.' ditional, and forfeited if the condition is 30 Cal. 596 ; Harpending v. Haight, 39 not observed. State v. Smith, 1 Bailey, Cal. 189; s. c. 2 Am. Rep. 432 ; Chuma^ 283 ; Lee v. Murphy, 22 Gratt. 789 ; Re sero v. Potts, 2 Mont. 244 ; Martin v. Ruhl, 6 Sawyer, 186; Kennedy's Case, Ingham, 38 Kan. 641. See Hatch v. 135 Mass. 48; Ex parte Marks, 64 Cal. Stoneman, 66 Cal. 632. In the following 29. But a pardon obtained by fraud is cases the power has been denied : Haw- held conclusive, though afterward de- kins v. Governor, 1 Ark. 570; Low v. dared null by the governor. Knapp v. Towns, 8 Ga. 360 ; State v. Kirkwood, 14 Thomas, 39 Ohio St. 377. Iowa, 162 ; Dennett, Petitioner, 32 Me. 1 State B. Staten, 6 Cold. 233. 510 ; People «. Bissell, 19 111. 229 ; People 2 Smith V. Norment, 5 Yerg. 271. v. Yates, 40 111. 126 ; People v. CuUom, ' It has been a disputed question 100 111. 472 ; State v. Governor, 25 N. J. whether the writ of mandamus will lie 331 ; Mauran v. Smith, 8 R. 1. 192 ; State to compel the performance of executive ». Warmoth, 22 La. Ann. 1 ; s. c. 2 Am. duties. In the following cases the power Rep. 712 ; Same a. Same, 24 La. Ann. has either been expressly affirmed, or it 351 ; s. c. 13 Am. Rep. 126 ; People v. has been exercised without being ques- Governor, 29 Mich. 320 ; s. c. 18 Am. Rep. tioned. State v. Moffitt, 5 Ohio, 358 ; 89 ; State v. Governor, 39 Mo. 388 ; Vicks- State V. Governor, 5 Ohio St. 529 ; Coltin burg & M. R. R. Co. i'. Lowry, 61 Miss. V. Ellis, 7 Jones (N. C), 545 ; Chamberlain 102. Nor can he be enjoined from acting. V. Sibley, 4 Minn. .309 ; Magruder v. Gov- Smith v. Myers, 109 Ind. 1 ; Bates v. Tay- ernor, 25 Md. 173; Groome v. Gwinn, 43 lor, 87 Tenn. 319. See Lacy v. Martin, Md. 572; Tennessee, &c. R. R. Co. v. 39 Kan. 703 ; Kilpatrick w. Smith, 77 Va. Moore, 86 Ala. 371; Middleton v. Lowe, 347. In Hartranft's Appeal, 85 Fa. St. CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 137 Delegating Legislative Power. One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain ; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high pre- rogative has been intrusted cannot relieve itself of the responsi- bility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriot- ism of any other body for those to which alone the people have seen fit to confide this sovereign trust.^ But it is not always essential that a legislative act should be a completed statute which must in any event take effect as law, at the time it leaves the hands of the legislative department, A 433 ; 8. c. 27 Am. Rep. 667, it was de- cided tliat the governor was not subject to the subpoena of the grand jury. In Minnesota it seems that oflSeers of the executive department are exempt from judicial process even in the case of min- isterial duties. Rice v. Austin, 19 Minn. 103; County Treasurer v. Dike, 20 Minn. 363; Western R. R. Co. v. De Graff, 27 Minn. 1 ; State v. Whitcomb, 28 Minn. 50. 1 " These are the bounds which the trust that is put in them by tlie society, and the law of God and nature, have set to the legislative power of every Commonwealth, in all forma of govern- ment ; — "First. They are to govern by pro- mulgated established laws, not to be varied in particular cases, but to liave one rule for rich and poor, for the fa- vorite at court and the countryman at plough. " Secondly. These laws also ought to be designed for no other end ultimately but the good of the people. " Thirdly. They must not raise taxes on the property of the people without the . consent of the people, given by them- selves or their deputies. And this prop- erly concerns only such governments where the legislative is always in being, or at least where the people have not re- served any part of the legislative to deputies, to be from time to time chosen by themselves. " Fourthly. The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." Locke on Civil Government, § 142. That legislative power cannot be del- egated, see Thome v. Cramer, 15 Barb. 112; Bradley v. Baxter, 15 Barb. 122; Barto V. Himrod, 8 N. Y. 483; People v. Stout, 23 Barb. 349; Rice v. Foster, 4 Harr. 479 ; Santo v. State, 2 Iowa, 165 ; Geebrick v. State, 5 Iowa, 491 ; State v. Beneke, 9 Iowa, 203 ; State v. Weir, 33 Iowa, 134 ; s. c. 11 Am. Rep. 115 ; People V. Collins, 3 Mich. 343; Railroad Com- pany V. Commissioners of Clinton County, 1 Ohio St. 77; Parker v. Common- wealth, 6 Fa. St. 507 ; Commonwealtk* 11. Mc Williams, 11 Pa. St. 61 ; Maize v. State, 4 Ind. 342; Meshmeier v. State, 11 Ind. 482 ; State v. Parker, 26 Vt. 357 ; State V. Swisher, 17 Tex. 441 ; State w. Copeland, 3 R. 1 83; State v. Wilcox, 45 Mo. 458; Commonwealth v. Locke, 72 Pa. St. 491; Ex parte Wall, 48 Cal. 279 ; Willis v. Owen, 43 Tex. 41 ; Farns- worth Co. V. Lisbon, 62 Me. 451 ; Bre'frer Brick Co. v. Brewer, 62 Me. 62 ; State v. Hudson Co. Gom'rs, 37 N. J. 12 ; Auditor V. Holland, 14 Bush, 147 ; State v. Simons, 32 Minn. 540. 138 CONSTITUTIONAL LIMITATIONS. [CH. V. statute may be conditional, and its taking effect may be made to depend upon som^ subsequent evCnt.^ Affirmative legislation may in some cases be adopted, of which the parties interested are at liberty to avail themselves or not at their option. A pri- vate act of incorporation cannot be forced upon the corporators ; they may refuse the franchise if they so choose.^ In these cases the legislative act is regarded as complete when it has passed through the constitutional formalities necessary to perfected legis- lation, notwithstanding its actually going into operation as law may depend upon its subsequent acceptance. We have elsewhere spoken of municipal corporations, and of the powers of legisla- tion which maybe and commonly are bestowed upon them, and the bestowal of which is not to be considered as trenching upon the maxim that legislative power must not be delegated, since that maxim is to be understood in the light of the immemorial practice of this country and of England, which has always recog- nized the propriety and policy of vesting in the municipal orga- nizations certain powers of local regulation, in respect to which the parties immediately interested may fairly be supposed more competent to judge of their needs than any central authority. As municipal organizations are mere auxiliaries of the State government in the important business of municipal rule, the legis- lature may create them at will from its own views of propriety or necessity, and without consulting the parties interested ; and it also possesses the like power to abolish them, without stopping to inquire what may be the desire of the corporators on that subject.^ 1 Brig Aurora v. United States, 7 ing for it shall erect a station at a place Cranch, 382 ; Bull v. Bead, 13 Gratt. 78 ; named. State v. New Haven, &c. Co., State V. Parker, 26 Vt. 867 ; Feck v. WeA- 43 Conn. 861. Railroad Commissioners dell, 17 Ohio St. 271 ; State v. Eirkley, 29 may be empowered to fix rates. Georgia Md. 85 ; Walton v. Greenwood, 60 Me. R. B. &c. Co. v. Smith, 70 Ga. 694. A 866; Baltimore v. Clunet, 23 Md. 449. commissionmay be empowered to select a It is not a delegation of legislative power site for a public building. People v. Dunn, to make the repeal of a charter depend 22 Pac. Bep. 140 (Cal.) ; Terr. v. Scott, upon the failure of the corporation to 3 Dak. 367. An act taxing corporations make up a deficiency which is to be of another State doing business within ascertained and determined by a tribunal the State as its corporations are taxed in provided by the repealing act. Lotlirop such other State is not an abandonment V. Stedman, 42 Conn. 683. See Crease v. of legislative functions. The law is com- Babcock, 23 Pick. 334, 344. Nor to refer plete ; its operation, contingent. Home the question of extending municipal Ins. Co. ». Swigert, 104 111. 653 ; Phoenix boundaries to a court where issues may Ins. Co. v. Welch. 29 Kan. 672. Contra, be formed and disputed facts tried. Bur- Clark i>. Mobile, 67 Ala. 217. lington V. Leebrick, 43 Iowa, 252 ; Wa- 2 Angell and Ames on Corp. § 81. hoo V. Dickinson, 86 N. W. Bep. 813 ' City of Patersori v. Society, &c., 24 (Neb.). It is competent to make an act N. J. 385; Cheany v. Hooser, 9 B. Monr. take effect on condition that those apply- 330; Berlin v. Gorham, 34 N. H. 266; CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 139 Nevertheless, as the corporators have a special and peculiar in- terest in the terms and conditions of th« charter, in the powers conferred and liabilities imposed, as well as in the general ques- tion whether they shall originally be or afterwards remain incor- porated at all or not, and as the burdens of municipal government must rest upon their shoulders, and especially as by becoming incorporated they are held, in law, to undertake to discharge the duties the charter imposes, it seems eminently proper that their voice should be heard on the question of their incorporation, and that their decisions should be coiwilusive, unless, for strong rea- sons of State policy or local necessity, it should seem important for the State to overrule the opinion of the local majority. The right to refer any legislation o£ this character to the people pecu- liarly interested does not seem to be questioned, and the reference is by no means unusual.^ For the like reasons the question whether a county or township shall he divided and a new one formed,^ or two townships or State K., Holden, 19 Neb. 249; Attorney- General ■•■. Weinaer, 59 Mich. 580. The question of a levee tax may lawfully be deferred to the voters of the distrlet of territory over which it is proposed to spread the tax, regardless of miiimuipal divisions. Alcorn v. Hamer, 38 Miss. 652. Power to grant an exclusive fran- chise in aid of navigation may be dele- gated to a village: Farnum v. Johnson, 62 Wis. 620; power to determine the penalty to be imposed for infraction of a State law may not : Montross v. State, 61 Miss. 429 ; nor power to increase its rep- resentation on a county board, when tlie constitution ordains that the legislature shall determine such representation. Feo' pie V. Riordan, 41 N. W, Rep. 482 (Mich.). And see, in general, Angell and Ames on Corp. § 31 and note ; also post, pp. 226- 228. 1 Bull V. Read, 18 Gratt. 78; Corning V. Greene, 23 Barb. 33 ; Morford v. Unger, 8 Iowa, 82 ; City of Paterson v. Society, &c., 24 N. J. 385; Gorham v. Springfield, 21 Me. 58 ; Commonwealth v. Judges of Quarter Sessions, 8 Pa. St. 391 ; Com- monwealth V. Painter, 10 Pa. St. 214; Call V. Chadbourne, 46 Me. 206 ; State v. Scott, 17 Mo. 521 ; State v. Wilcox, 45 Mo. 458 ; Hobart v. Supervisors, &o., 17 Cal. 23 ; Bank of Chenango v. Brown, 26 N. Y. 467 ; Steward v. Jefferson, 3 Harr. 885 ; Burgess v. Pue, 2 Gill, 11 ; Lafay- ette, &c. R. R. Co. V. Geiger, 84 Ind. 185 ; Clarke b. Rogers, 81 Ky. 43. As the question need not be submitted at all, the legislature may submit it to the free- holders alone. People v. Butte, 4 Mont. 174. The right to refer to the people of several municipalities the question of their consolidation was disputed in Smith V. McCarthy, 56 Pa. St. 359; but sus- tained by the court. And see Smyth v. Titcomb, 31 Me. 272; Erlinger v. Boneau, 51 III. 94; Lammert v. Lidwell, 62 Mo. 188 ; State v. Wilcox, 45 Mo. 458 ; Bruns- wick V. Finney, 54 6a. 317 ; Response to House Resolution, 55 Mo. 295; People v. Fleming, 10 Col. 553 ; Graliam v. Green- ville, 67 Tex. 62. " State V. Reynolds, 10 111. 1. See State V. McNiell, 24 Wis. 149. Response to House Resolution, 55 Mo. 295. For other cases on the same general subject, see People v. Nally, 49 Cal. 478 ; Pike County :;. Barnes, 51 Miss. 305 ; Bruns- wick V. Finney, 54 Ga. 317. The ques- tion whether a general school law shall be accepted in a particular municipality may be referred to its voters. State v. Wilcox, 45 Mo. 458. The operation of an act creating a municipal court may be made dependent on the approval of the municipal voters. Rutter v. Sullivan, 25 W. Va. 427. A city may be empowered to decide by vote whether it will take control of the public schools in it. Wer- ner V. Galveston, 7 S. W. Rep. 726 (Tex.). 140 CONSTITUTIONAL LIMITATIONS. [CH. V. school districts formerly one be reunited,^ or a city charter be revised,^ or a county seat located at a particular place, or after its location removed elsewhere,* or the municipality contract par- ticular debts, or engage in a particular improvement,* is always a question which may with propriety be referred to the voters of the municipality for decision.* The question then arises, whether that which may be done in reference to any municipal organization within the State may not 1 Commonwealth v. Judges, &c., S Pa. St. 391 ; Call v. Chadbourne, 46 Me. 206; People a. Nally, 49 Cal. 478; ErUn- ger V. Boneau, 61 111. 94. * Brunswick v. Finney, 54 Ga 317. 3 Commonwealth v. Painter, 10 Fa. St. 214; Clarke v Jack, 60 Ala. 271. See People V. Salomon, 51 111. 37 ; Slinger v. Henneman, 38 Wis. 504; Hall v. Mar- shall, 80 Ky. 552 ; post, pp. 145, 146. * There are many cases in which municipal subscriptions to works of inter- nal improvement, under statutes empow- ering them to be made, have been sus- tained ; among others, Goddin v. Crump, 8' Leigh, 120; Bridgeport v. Housatonic Railroad Co., 15 Conn. 475; Starin v. Genoa, 29 Barb. 442, and 23 N. Y. 439- Bank of Rome o. Village of Rome, 18 N. Y. 38 ; Prettyman v. Supervisors, &c., 19 111. 406 ; Robertson v. Rockford; 21 III. 451 ; Johnson v. Stack, 24 III. 75 ; Bush- nell 1). Beloit, 10 Wis. 195 ; Clark o. Janes- ville, 10 Wis. 136; Stein ». Mobile, 24 Ala. 591 ; Mayor of Wetumpka v. Win- ter, 29 Ala. 651 ; Pattison v. Yuba, 13 Cal. 175 ; Blanding v. Burr, 18 Cal. 343 ; Hobart v. Supervisors, &c., 17 Cal. 23; Taylor v. Newberne, 2 Jones Eq. 141; Caldwell v. Justices of Burke, 4 Jones Eq. 323 ; Louisville, &c. Railroad Co. v. Davidson, 1 Sneed, 637 ; Nichol v. Mayor . of Nashville, 9 Humph. 252 ; Railroad Co. V. Commissioners of Clinton Co., 1 Ohio St, 77 ; Trustees of Paris v. Cherry, 8 Ohio St. 564; Cass v. Dillon, 2 Ohio St: 607; State v. Commissioners of Clinton Co , 6 Ohio St. 280 ; State v. Van Home. 7 Ohio St. 327 ; State v. Trustees of Union, 8 Ohio St. 394 ; Trustees, &c. v. Shoe- maker, 12 Ohio St. 624 ; State v. Com- missioners of Hancock, 12 Ohio St. 596 ; Powers V. Dougherty Co., 23 Ga. 65; San Antonio v. Jones, 28 Tex. 19; Com- monwealth V. Mc Williams, 11 Pa. St. 61 ; Sharpless v. Mayor, &c., 21 Pa. St. 147 ; Moers v. Reading, 21 Pa. St. 188 ; Tal- bot V. Dent, 9 B. Monr. 526 ; Slack v. Railroad Co., 13 B. Monr. 1 ; City of St. Louis V. Alexander, 23 Mo. 483 ; City of Aurora v. West, 9 Ind. 74 ; Cotton t». Com- missioners of Leon, 6 Fla. 610 ; Copes v. Charleston, 10 Rich. 491 ; Commissioners of Knox County v. Aspinwall, 21 How. 639, and 24 How. 326 ; Same v. Wallace, 21 Kow. 547 ; Zabriskie v. Railroad Co., 23 How. 381 ; Amey v. Mayor, &c., 24 How. 364; Gelpcke ». Dubuque, 1 Wall. 175; Thomson v. Lee County, 3 Wall. 327; Rogers v. Burlington, 3 Wall. 654 ; Gib- bons V. Mobile & Great Northern Railroad Co., 36 Ala. 410 ; St. Joseph, &c. Railroad Co. V. Buchanan Co. Court, 39 Mo. 485 ; State 0. Linn Co. Court, 44 Mo. 504; Stewart v. Supervisors of Polk Co., 30 Iowa, 9; John v. C. R. &F. W. R. R. Co., 35 Ind. 539; Leavenworth County v. Miller, 7 Kan. 479 ; Walker v. Cincinnati, 21 Ohio St. 14 ; Ex parte Selma, &c. R. R. Co., 45 Ala. 696; S. & V. R. R. Co. v. Stockton, 41 Cal. 149. In several of them the power to authorize the municipalities to decide upon such subscriptions has been contested as a delegation of legisla- tive authority, but the courts — even those which hold the subscriptions void on other grounds — do not look upon these cases as being obnoxious to the con- stitutional principle referred to in the text. * Whatever powers the legislature may delegate to any public agency for exercise, it niay itself resume and exercise. Dyer V. Tuscaloosa Bridge Co., 2 Port. 296; s. 0. 27 Am. Dee. 655; Attorney-General V. Marr, 55 Mich. 445 ; Chicago & N. W. Ry. Co. V. Langlade Co., 56 Wis. 614. But this must be understood with the exception of those cases in which the constitution of the State requires lo- cal matters to be regulated by local authority. CH. T.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 141 also be done in reference to the State at large. May not any law- framed for the State at large be made conditional on an accept- ance by the people at large, declared through the ballot-box ? If it is not unconstitutional to delegate to a single locality the power to decide whether it will be governed by a particular charter, must it not quite as clearly be within the power of the legislature to refer to the people at large, from whom all power is derived, the decision upon any proposed statute affecting the whole State ? And can that be called a delegation of power which consists only in the agent or trustee referring back to the principal the final decision in a case where the principal is the party concerned, and where perhaps there are questions of policy and propriety in- volved which no authority can decide so satisfactorily and so con- clusively as the principal to whom they are referred ? If the decision of these questions is to depend upon the weight of judicial authority up to the present time, it must be held that there is no power to refer the adoption or rejection of a general law to the people of the State, any more than there is to refer it to any other authority. The prevailing doctrine in the courts appears to be, that, except in those cases where, by the constitu- tion, the people have expressly reserved to themselves a power of decision, the function of legislation cannot be exercised by them, even to the extent of accepting or rejecting a law which has been framed for their consideration. " The exercise of this power by the people in other cases is not expressly and in terms prohibited by the constitution^ but it is forbidden by necessary and unavoid- able implication. The Senate and Assembly are the only bodies of men clothed with the power of general legislation. They possess the entire power, with the exception above stated. The people reserved no patt of it to themselves [with that exception], and can therefore exercise it in no other case." It is therefore held that the legislature have no power to submit a proposed law to tlie people, nor have the^ped^jle power to bind each other by acting upon it. They voluntarily surrendered that power when they adopted the constitution. The government of the State is democratic, but it is a representative democracy, and in passing general laws the people act only through their representatives in the legislature.^ 1 Per Biiggles, Cli. J., in Barto v. Him- people to framo and agree upon a statute rod, 8 N. y^ 483. It is worthy of consid- for themselves would be equally imprao- eration, however, whether there is any tiuable and inconsistent with the repre- thing in the reference of a statute to the sentative system ; but to take the opinion people for acceptance or rejection which of the people upon a bill already framed is inconsistent with the representative by representatives and submitted to them, system of government. To refer it to the is not only practicable, but is in precise 142 CONSTITUTIONAL LIMITATIONS. [CH. V. Nor, it seems, can such legislatioQ be sustained as legislation of a conditional character, whose force is to depend upon the happening of some future event, or upon some future change of circumstances. " The event or change of circiiiustances on which a law may be made to take effect must be such as, in the judg- ment of the legislature, affects the question of the expediency «f the law ; an evefit on which the expediiency of the law in the opinion of the law-makers depends. On this question of expedi- ency the legislature must exercise its own judgment definitively and finally. When a law is made to take effect upon the happening ■of such an event, the legislature in effect declare the ;law inex- pedient if the event should not happen, but expedient if it should happen. They appeal to no other man or men to judge for them in relation to its present or future expediency. They exercise that power themselves, and then perform the duty which the Con- stitution imposes upon them." But it was held that in the case of the submission of a proposed free-school law to the people, no such event or change of circumstances affecting the expediency of the law was expected to happen. The wisdom or expediency of the School Act,; abstractly considered, did not depend on the vote of the people. If it was unwise or inexpedient before that vote was taken, it was equally so afterwards. The event on which the act was to take effect was nothing else than the vote of the people on the identical question which the constitution makes it the duty of the legislature itself to decide. The legislature has no power to make a statute dependent on such a contingency, because it would be confiding to others that legislative discretion which they are bound to exercise themselves, and which they cannot delegate or commit to any other man or men to be exercised.^ accordance with the mode in which the s. c. 20 Am. Eep. 83 ; King v. Reed, 43 constitution of the State is adopted, and N. J. 186. with the action wliiuh is taken in many i Per Raqgles, C\i. J., in Barto v. Him- otlier cases. The representative in these rod, 8, N. Y.. 483. And see State k. Hayea, cases has fulfilled precisely those functions 61 N. H. 264 ; Santo v. State, 2 Iowa, 165 ; which the people as a democracy could State v. Beneke, 9 Iowa, 203 ; State v. npt fulfil; and where the case has reached Swisher, 17 Tex. 441; State v. Field, 17 a stage when the body of the people can Mo. 529 ; Bank of Chenango o. Brown, act without confusion, the representative 26 N. Y. 467; People t. Stout, 23 Barb, has stepped aside to allow their opinion to 349; State ». Wilcox, 45 Mo. 458; jEt he expressed. The legislature is not at- parte Wall, 48 Cal. 279, 313; Brown v. tempting in such a case to delegate its Fleischner, 4 Oreg. 132. The power to tax authority to a new agency, but the trus- cannot be delegated except as by the Con- tee, vested with a large discretionary stitution is permitted. Where the Con- authority, is taking the opinion of the stitution provided that the General As- principal upon the necessity, policy, or sembly shall have power to authorize the propriety of ftn act which is to govern the several counties and incorporated towns principal himself. See Smith w. Janesville, to impose taxes for county and corpora: 26 Wis. 291; Fell v. State, 42 Hd. 71; tion purposes respectively, it was held OH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 143 The same reasons which preclude the original enactment of & law from being referred to the people would render it equally not competent to delegate the power to a school board. Waterhouse v. Public Schools, 9 Bax. 398. But upon this point there is great force in what is said by Redfidd, Ch. J., in State w. Parker, 26 Vt. 857: "If the operation of a law may fairly be made to depend upon a future contingency, tlien, in my apprehension, it makes no essential difference what is 1;he nature of the contingency, so it be an equal and fair one, a moral and legal one, not opposed to sound policy, and so far connected with the object and purpose of the statute as not to be a mere idle and arbitrary one. And to us the contingency, upon which the present statute was to be suspended until another legislature should meet and have opportunity of reconsider- ing it, was not only proper and legal, and just and moral, but highly commendable and creditable to the legislature who passed the statute ; for at the very thresh- old of inquiry into the expediency of such a law lies the other and more im- portant inquiry. Are the people prepared for such a law ? Can it be successfully enforced? These questions being an- swered in the affirmative, he must be a bold man wlio would even vote against the law ; and something more must he be who would, after it had been passed with that assurance, be willing to embarrass its operation or rejoice at its defeat. " After a full examination of the ar- guments by which it is attempted to be sustained that statutes made dependent upon such contingencies are not valid laws, and a good deal of study and reflec- tion, I must declare that I am fully con-* vinced — although at first, without much examination, somewhat inclined to the same opinion — that the opinion is the re- sult of false analogies, and so founded upon a latent fallacy. It seems to me that . the distinction attempted between the contingency of a popular vote and other future contingencies is without all just foundation in sound policy or sound reasoning, and that it has too often been made more from necessity than choice, — rather to escape from an overwhelming analogy than from any obvious difference in principle in the two classes of cases ; for . . . one may find any number of cases in the legislation of Congress, where statutes have been made dependent upon the shifting character of the revenue laws, or the navigation laws, or commercial rules, edicts, or restrictions of otlier coun- tries. In some, perhaps, these laws are made by representative bodies, or, it may be, by the people of these States, and in others by the lords of the treasury, or the boards of trade, or by the proclamation of the sovereign ; and in all these cases no question can be made of the perfect le. gality of our acts of Congress being made dependent upon such contingencies. It is, in fact, the only possible mode of meet- ing them, unless Congress is kept con- stantly in session. The same is true of acts of Congress by which power is vested in the President to levy troops or draw money from the public treasury, upon the con- tingency of a declaration or an act of war committed by some foreign state, empire, kingdom, prince, or potentate. If these illustrations are not sufficient to show the fallacy of the argument, more would not avail." See also State v. Noyes, 10 i'ost. 279; Bull v. Read, 13 Gratt. 78; Johnson V. Rich, 9 Barb. 680; State v. Reynolds, 10 111. 1 ; Robinson v. Bidwell, 22 Cal. 379. In the case of Smith v. Janesville, 26 Wis. 291, Chief Justice >Z)«on discusses this subject in the following language : " But it is said that the act is void, or at least so much of it as pertains to the tax- ation of shares in national banks, because it was submitted to a vote of the people, or provided that it should take effect only after approval by a m^ority of the elec- tors voting on the subject at the next general election. This was no more than providing that the act should take ef- fect on the happeiiing of a certain future contingency, that contingency being a popular vote in its favor. No one doubts the genenit power of the legislature to make such regulations and conditions as it pleases with regard to the taking effect or operation of laws. They may be ab- solute, or conditional and contingent ; and if the latter, they may take effect on the happening of any event which is future and uncertain. Instances of this kind of legislation are not unfrequent. The law of Congress suspending the writ of habeas 144 CONSTITUTIONAL LIMITATIONS. [CH. V. Incompetent to reffer to their decision the question whether an existing law should be repealed. If the one is " a plain surrender to the people of the law-making power," so also is the other.^ It would seem, however, that if a legislative act is, by its terms, to take effect in any contingency, it is not unconstitutional to make the time when it shall take effect depend upon the event of a popular vote being for or against it, — the time of its going into operation being postponed to a later day in the latter contingency .^ It would also seem that if the question of the acceptance or rejec- tion of a municipal charter can be referred to the voters of the locality specially interested, it would be equally competent to refer to them the question whether a State law establishing a particular police regulation should be of force in such locality or not. Mu- nicipal charters refer most questions of local government, includ- ing police regulations, to the local authorities ; on the supposition that they are better able to decide for themselves upon the needs, as well as the sentiments, of their constituents, than the legisla- ture possibly can be, and. are therefore more competent to judge carpus daring the late rebellion is one, and several others are referred to in tlie case In re Richard Oliver, 17 Wis. 681. It be- ing conceded tliat the legislature posses- ses this general power, tlie only question here would seem to be, whether a vote of the people in favor of a law is to be ex- cluded from the number of those future contingent events upon which it may be provided that it shall take effect. A sim. liar question was before this court in a late case (State ex rel. Attorney-General V. O'Neill, Mayor, &c., 24 Wis. 149), and was very elaborately discussed. We came unanimously to the conclusion in that case that a provision for a vote of the electors of the city of Milwaukee in favor of an act of the legislature, before it should take effect, was a lawful contingency, and that the act was valid. That was a law affecting the people of Milwaukee parti- cularly, while this was one affecting the people of the whole State. There the law was submitted to the voters of that city, and here it was submitted to those of the State at large. What is the differ- ence between the two cases ? It is mani- fest, on principle, that there cannot be any. The whole reasoning of that case goes to show that this act must be valid, and so it has been held in the best-consid- ered cases, as will be seen by reference to that opinion. We are constrained to hold, therefore, that this act is and was in all respects valid from the time it took effect, in November, 1866; and conse- quently that there was no want of author- ity for the levy and collection of the taxes in question." This decision, though op- posed to many others, appears to us en- tirely sound and reasonable. 1 Geebrick v. State, 6 Iowa, 491 ; Rice V. Foster, 4 Harr. 479 ; Parker v. Com- monwealth, Pa. St. 607. The case in 5 Iowa was followed in State v. Weir, 33 Iowa, 134 ; s. c. H Am. Rep. 115. 2 State V. Parker, 26 Vt. 857. The act under consideration in that case was, by its terms, to take effect on the second Tuesday of March after its passage, un- less the people to whose votes it was sub- mitted should declare against it, in which case it should take effect in the following December. The case was distinguished from Barto v. Hinirod, 8 N. Y. 483, ancl the act sustained. At the same time the court express their dissent from the rea- soning upon which the New York case rests. In People v. Collins, 3 Mich. 843, the court was equally divided in a case similar to that in Vermont, except that in the Michigan case the law which was passed and submitted to the people in 1853 was not to go into effect until 1870, if the vote of the people was against it. CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 145 what local regulations are important, and also how far the local sentiment will assist in their enforcement. The same reasons would apply in favor of permitting the people of the locality to accept or reject for themselves a particular police regulation, since this is only allowing them less extensive powers of local govern- ment than a municipal charter would confer ; and the fact that the rule of law on that subject might be different in different localities, according as the people accepted or rejected the regula- tion, would not seem to affect the principle, when the same result is brought about by the different regulations which municipal cor- porations establish for themselves in the exercise of an undisputed authority .1 It is not to be denied, however, that there is consid- erable authority against the right of legislative delegation in these cases. The legislature of Delaware, in 1847, passed an act to authorize the citizens of the several counties of the State to decide by bal- lot whether the license to retail intoxicating liquors should be per- mitted. By this act a general election was to be held ; and if a majority of votes in any county should be cast against license, it should not thereafter be lawful for any person to retail intoxicat- > In New Hampshire nn act was passed declaring bowling-alleys, situate within twenty-five rods of a dwelling-house, nui- sances, but the statute was to be in force only in those towns in which it should be adopted in town meeting. In State v. Koyes, 10 Fost. 279, tliis act was held to be constitutional. " Assuming," say the court, " that the legislature has the right to confer the power of local regulation upon cities and towns, that is, the power to pass ordinances and by-laws, in such terms and with such provisions, in the classes of cases to which the power ex- tends, as they may think proper, it seems to us hardly possible seriously to contend that the legislature may not confer the power to adopt within such municipality a law drawn up and framed by. them- selves. If they may pass a law author- izing towns to make ordinances to punish the keeping of billiard-rooms, bowling- alleys, and other places of gambling, they may surely pass laws to punish the same acts, subject to be adopted by the town before they can be of force in it." And it seems to us difficult to answer this rea- soning, if it be confined to such laws as fall within the proper province of local government, and which are therefore usually referred to the judgment of the municipal authorities or their constitu- ency. A similar question arose in Smith V. Village of Adrian, 1 Mich. 496, but was not decided. In Bank of Chenango v. Brown, 26 N. Y. 467, it was held competent to authorize the electors of an incorpo- rated village to determine for themselves what sections of the general act for the incorporation of villages should apply to their village. An act empowering a city, where the legal voters authorize it, to allow Sunday sales of refreshments, is valid. State v. Francis, 95 Mo. 44. The operation of a park act may be left to the vote of a city. State u. District Court, 33 Minn. 23S. So, of a law vesting control of streets in aldermen instead of street commissioners. State i>. Iloagland, 16 Atl. Rep. 166 (N. J.). So of a law creat- ing a new county. People v. McFadden, 22 Pac. Hep.. 8.51 (Cal.). Whether an election to determine upon putting a law in operation - sliall be called, may be left to the discretion of officers. Johnson v. Martin, 12 S. W. Rep. 321 (Tex.). See further. People v. Salomon, 51 111.. 375 Burgess, v. Fiie, 2 Gill, 11 ; Hammond v. Haines, 25 Md. 641. 10 146 ■ CONSTITUTIONAL LIMITATIONS. '[OH. T. ing liquors within such county ; but if the majority should be cast in favor of license, then licenses might be granted in the county so voting, in tlie manner and under the regulations in said act prescribed. The Court of Errors and Appeals of that State held this act void, as an attempted delegation of the trust to make laws, and upon the same reasons which support the cases before citedj where acts have been held void which referred to the people of the State for approval a law of general application.^ A like decision was made near the same time by the Supreme Court of Pennsyl- vania,^ followed afterwards by others in Iowa,* Indiana,* and California.* But the decision in Pennsylvania was afterwards overruled on full discussion and consideration,* and that in In- diana must, as we think, be deemed overruled also.'' In other States a like delegation of authority to the local electors has gen* erally been sustained. Such laws are known, in common parlance, as Local Option Laws. They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle in the highways, may be differently regarded in different locali- ties, and they are sustained on what seems to us the impregnable ground, that the subject, though not embraced within the ordinary power of the municipalities to make by-laws and ordinances, is nevertheless within the class of police regulations, in respect to which it is proper that the local judgment should control.^ Irrepealable Laws. Similar reasons to those which forbid the legislative department of the State from delegating its authority will also forbid its pass- 1 Rice V. Foster, 4 Harr. 479. sohn v. Sterling, 92 111. 569 ; State v. Mor- 2 Parker v. Commonwealth, 6 Pa. St. ris County, 36 N. J. 72 ; s. o. 13 Am. Rep. 507. See Commonwealth v. McWilliams, 422 ; State v. Circuit Court, 15 Atl. Rep. 11 Pa. St. 61. 274 (N. J.) ; State v. Wilcox, 42 Conn. » Geebrick i>. State, 5 Iowa, 491. See 364 ; s. c. 19 Am. Rep. 536 ; Fell v. State, State V. Weir, 33 Iowa, 134 ; s. c. 11 Am. 42 Md. 71 ; s. c. 20 Am. Rep. 83 ; State v. Rep. 115. Cooke, 24 Minn. 247 ; s. c. 31 Am. Rep. * Maize v. State, 4 Ind. 342; Mesh- 844; Cain v. Commissioners, 86 N. C. 8; meier v. State, 11 Ind. 482. See also State Boyd o. Bryant, 35 Ark. 69 ; s. c. 87 Am. V. Field, 17 Mo. 529 ; Lainmert v. Lidwell, Rep. 6 ; Savage v. Com., 6 S. E. Rep. 666 62 Mo. 188 ; State v. Copeland, 3 R. I. 33. (Va.) ; Caldwell v. Barrett, 73 Ga. 604 ; « Ex parte Wall, 48 Cal. 279 ; s. o. 17 Ex parte Kennedy, 28 Tex. App. 77 ; Am. Rep. 425. Schulherr v. Bordeaux, 64 Miss. 59 ; State 1 Locke's Appeal, 72 Pa. St. 491 ; s. o. v. Pond, 93 Mo. 606 ; Terr. ». O'Connor, 13 Am. Rep. 716. 41 N. W. Rep. 746 (Dak.). Local option, ' Groesch v. State, 42 Ind. 647. as applied to the sale of liquors, has also 8 Commonwealth v. Bennett, 108 Mass. been sustained in Canada. Mayor, &c. v. 27; Commonwealth t>. Dean, 110 Mass. The Queen, 8 Can. Sup. Ct. 605. But 357; Commonwealth v. Fredericks, 119 the matter cannot be left to an election Mass. 199; Bancroft v. Dumas, 21 Vt. precinct. It must be submitted to a 456 ; Slinger v. Henneman, 38 Wis. 604 ; municipal corporation. Thornton «. Ter- Erlinger v. Boneau, 61 HI. 94 ; Guniiars- litory, 17 Pac. Rep. 896 (Wash.). CH. v.] POWEES EXERCISED BY LEGISLATIVE DEPARTMENT. 147 ing any irrepealable law. The constitution, in conferring the le- gislative authority, has prescribed to its exercise any limitations •which the people saw fit to impose ; and no other power than the people can superadd other limitations. To say that the legislature may pass irrepealable laws, is to say that it may alter the very constitution from which it derives its authority ; since, in so far as one legislature could bind a subsequent one by its enactments, it could in the same degree reduce the legislative power of its successors ; and the process might be repeated^ until, one by one, the subjects of legislation would be excluded altogether from their control, and the constitutional provision that the legislative power shall be vested in two houses would be to a greater or less degree rendered ineffectual.^ " Acts of Parliament," says Blackstone, " derogatory from the power of subsequent Parliaments, bind not ; so the statute 11 Henry VII. c. 1, which directs that no person for assisting a king de facto shall be attainted of treason by act of Parliament or- otherwise, is held to be good only as to common prosecution for high treason, but it will not restrain nor clog any parliamentary attainder. Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority ; it ac- knowledges no superior upon earth, which the prior legislature must have been if its ordinances could bind a subsequent Parlia- ment. And upon the same principle, Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses which endeavor to tie up the hands of succeeding legislatures. ' When you repeal the law itself,' says he, ' you at the same time repeal the prohibitory clause which guards against such repeal.' " ^ Although this reasoning does not in all its particulars apply to the American legislatures, the principle applicable in each case is the same. There is a modification of the principle, however, by an important provision of the Constitution of the United States, 1 " Unlike the decision of a court, a not destroy, the public prosperity. Every legislative act does not bind a subsequent legislative body, unless restricted by the legislature. Each body possesses the same constitution, oiay modify or abolish the power, and has a right to exercise the acts of its predecessors ; whether it would same discretion. Measures, though often be wise to do so is a matter for legislative rejected, may receive legislative sanction, discretion." Bloomer v. StoUey, 5 Mc- There is no mode by which a legislative Lean, 158. See this subject considered act can be made irrepealable, except it in Wall v. State, 23 Ind. 150, and State v. assume the form and substance of a con- Oskins, 28 Ind. 864 ; Oleson v. Green Bay, tract. If in any line of legislation a per- &c. B. R. Co., 36 Wis. 383. In Kellogg manent character could be given to acts, v. Oshkosh, 14 Wis. 623, it was held that the most injurious consequences would . one legislature could not bind a future result to the country. Its policy would one to a particular mode of appeal, become fixed and unchangeable on great * 1 Bl. Com. 90. national interests, which might retard, if 148 CONSTITUTIONAL LIMITATIONS. [CH. V. forbidding the States passing any laws impairing the obligation of contracts. Legislative acts are sometimes in substance contracts between the State and the party who is to derive some right under them, and they are not the less under the protection of the clause quoted because of having assumed this form. Charters of incor- poration, except those of a municipal character, — and which, as we have already seen, create mere agencies of government, — are held to be contracts between the State and the corporators, and not subject to modification or change by the act of the State alone, except as may be authorized by the terms of the charters themselves.^ And it now seems to be settled, by the decisions of the Supreme Court of the United States, that a State, by con- tract to that effect, based upon a consideration, may exempt the property of an individual or corporation from taxation for any specified period, or even permanently. And it is also settled by the same decisions, that where a charter, containing an exemption from taxes, or an agreement that the taxes shall be to a specified amount only, is accepted by the corporators, the exemption is presumed to be upon sufficient consideration, and consequently binding upon the State.^ 1 Dartmouth College v. 'Woodward, 4 Wheat. 518; Planters' Bank «. Sharp, 6 How. 301. * Gordon v. Appeal Tax Court, 3 How. 133; New Jersey v. Wilson, 7 Cranch, 164; Fiqua Branch Bank v. Knoop, 16 How. 369; Ohio Life Ins. and Trust Co. V. Debolt, 16 How. 416, 432 ; Dodge v. Woolsey, 18 How. 331 ; Mechanics' and Traders' Bank v. Debolt, 18 How. 381 ; Jefferson Branch Bank v. Skelly, 1 Black, 436 ; Erie E. E. Co. v. Pennsylvania, 21 Wall. 492. See also Hunsaker v. Wright, 30 111. 146 ; Morgan v. Cree, 46 Vt. 773 ; Spooner v. McConnell, 1 McLean, 847 ; post, p. 338. The right of a State legisla- ture to grant away the right of taxation, which is one of the essential attributes of sovereignty, has been strenuously denied. See Debolt v. Ohio Life Ins. and Trust Co., 1 Ohio St. 563; Mechanics' and Traders' Bank v. Debolt, 1 Ohio St. 591 ; Brewster v. Hough, 10 N. H. 138 ; Mott ». Pennsylvania Eailroad Co., 30 Pa. St. 9. And see Thorpe v. Eutland and B. Eailroad Co., 27 Vt. 140; post, p. 337 and note. In Brick Presbyterian Cliurch V. Mayer, &c. of New York, 5 Cow. 538, it was held that a municipal corporation had no power, as a party, to make a con- tract which should control or embarrass its discharge of legislative duties. And see post, p. 250. In Coats y. Mayor, &q. of New York, 7 Cow. 585, it was decided that though a municipal corporation grant lands for cemetery purposes, and cove- nant for their quiet enjoyment, it will not thereby be estopped afterwards to forbid by by-law the use of the land for that purpose, when such use becomes or is likely to become a nuisance. In Stone V. Mississippi, 101 U. S. 814, 820, Chief Justice Waite says ; " The power of gov- erning is a trust committed by the people to the government, no part of which can be granted away. The people, in their sovereign capacity, have established their agencies for the preservation of the public health and the public morals, and the protection of public and private rights. These several agencies can gov- ern according to their discretion, if within the scope of their general authority, while in power; but they cannot give away nor sell the discretion of those that are to come after them /in respect to mat> ters the government of which, from the very nature of things, must Tary with varying circumstances." See also, on the same subject, Morgan v. Smith, 4 Minn. CH. v.] POWERS EXEKCISED BY LEGISLATIVE DEPAKTMENT. 149 Territorial Limitation to State Legislative Authority. The legislative authority of every State must spend its force within the territorial limits of the State. The legislature of one State cannot make laws by which people outside the State must 'govern their actions, except as they may have occasion to resort to the remedies which the State provides, or to deal with property situated within the State. It can have no authority upon the high seas beyond State lines, because there is the point of con- tact with other nations, and all international questions belong to the national government.^ It cannot provide for the punishment as crimes of acts committed beyond the State boundary, because such acts, if offences at all, must be offences against the sover- eignty within whose limits they have been done.^ But if the con- sequences of an unlawful act committed outside the State have reached their ultimate and injurious result within it, it seems that the perpetrator may be punished as an offender against such State.^ 104; Kincaid's Appeal, 66 Pa. St. 411; B. c. 5 Am. Rep. 877 ; Hamrick v. Rouse, 17 Ga. 66, where it was held that the le- gislature could not bind its successors not to remove a county seat. Bass v. Fontle- roy, 11 Tex. '698; Shaw u. Macon, 21 Ga. 280; Regents of University v. Wil- liams, 9 G. & J. 365 ; Mott v. Pennsylva- nia Railroad Co., 30 Pa. St. 9. In Bank of Republic v. I^milton, 21 111. 63, it was held that, in construing a statute, it will not be intended that the legislature de- signed to abandon its right as to taxatiofi; This subject is considered further, post, pp. 337-342. 1 1 Bish. Cr. Law, § 120. 2 State V. Knight, 2 Hayw. 109 ; Peo^ pie V. Merrill, 2 Park. Cr. R. 590; Adams p. People, 1 N. Y. 173; Tyler v. People, 8 Mich. 320; Morrissey v. People, 11 Mich. 327 ; Bromley v. People, 7 Mich. 472; State v. Main, 16 Wis. 398; Wat- son's Case, 36 Miss. 593 ; In re Carr, 28 Ean. 1. See In re Rosdeitscher, 88 Fed. Rep. 657. The Constitution of the United States empowers Congress to exercise exclusive jurisdiction over places pur- chased by consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings. When the United States acquires lands without such consent, the State jurisdic- tion is as complete as if the lands were owned by private citizens. But the State, in giving consent, may reserve the right to serve State process within the terri- tory : State V. Dimick, 12 N. H. 194; Commonwealth v. Clary, 8 Mass. 72; United States v. Cornell, 2 Mas. 60; Opin- ion of Judges, 1 Met. 580 ; or to tax rail- roads in it : Fort Leavenworth R. R. Co. ». Lowe, 114 U. S. 525; and its railroad fencing statutes remain in force. Clii- cago, R. I., &c. Co. V. McGlinn, 114 U. S. 542. OfEences within the purchased territory can only be punished by the United States : United States v. Ames, 1 Wood. & M. 76; Mitchell v. Tibbette, 17 Pick. 298; even though death ensues out of the territory : Kelly v. United States, 27 Fed. Rep. 616 ; State v. Kelly, 76 Me^ 381 ; and residents within such territory are not citizens of the State. Common- wealth V. Clary, 8 Mass. 72; Sinks v. Roese, 19 Ohio St. 306. As to jurisdic- tion over military camps within a State, for military purposes, see United States V. Tierney, 1 Bond, 671; and as to crimes on Indian reservations. United States v. Kagama, 118 U; S. 875 ; Ex parte Cross, 20 Neb. 417 ; Marion v. State, id. 233. . » Tyler v. People, 8 Mich. 320, Mur- der is committed in the District of Co- lumbia if the fatal blow is struck there, though the death occurs elsewhere. 150 CONSTITUTIONAL LIMITATIONS.' [CH. V, Upon the principle of comity, however, which is a part of the law of nations, recognized as such by every civilized people, effect is given in one ^tate or country to the laws of another in a great variety of ways, especially upon questions of contract rights to property, and rights of action connected with and dependent upon such foreign laws ; without which commercial and business inter- course between the people of different States and countries could scarcely exist.^ In the making of contracts, the local law enters into and forms a part of the obligation ; and if the contract ia valid in the State where it is made, any other State will give reme- dies for its enforcement, unless, according to the standard of such latter State, it is bad for immorality, or is opposed in its provisions to some accepted principle of public policy, or unless its enforce- ment would be prejudicial to the State or its people.^ So, though United States v. Gaiteau, 1 Mackey, 498. See Hatfield v. Com., 12 S. W. Kep. 309 . Murphy, 30 N. J. £q. 408 ; Elston v. Piggott, 94 Ind. 14 ; Peo- ple V. Howard, 60 Mich. 239 ; Christian Union «. Yount, 101 U. S. 352. Taking an order in one State for the delivery of goods in another is not such a doing of business as to require compliance with a statute for filing certificate, &c., before transacting of business by a foreign cor- poration. Cooper Mfg. Co. v, Ferguson, lis U. S. 727. But a State may by penal- ties enforce compliance wiih its laws by a foreign corporation. Moses v. State, 65 Miss. 56. Powers not allowed to such corporation in the State where created, it will not be suffered to exercise else- where. Starkweather v. Bible Society, 72 111, 50 ; s. c. 22 Am. Eep. 133 ; Kerr V. Dougherty, 79 N. Y. 827 ; Thompson v. Waters, 25 Mich. 214. * A rule which applies even to the goremment itself. United States v. Fox, 94 U. S. 315. See State v. Scott, 22 Neb, 628. Only a State can raise the questioD whether a foreign corporation can right- fully acquire land for its business pur- poses. Barnes v. Suddard, 117 III. 237. Failure of such corporation to comply with statutory conditions precedent to doing business does not avoid a convey- ance to it so that a private person can attack it collaterally. Fritts v. Palmer, 10 S. C. Bep. 93. Compare Eoenig v. Chicago, B. & Q. B. E. Co., 43 N. W. 423 (Neb.). ' Dickson v, Dickson, 1 Yerg. 110; B.C. 24 Ant. Dec. 444 ; Scoville v. Canfield, 14 Johns. 888 ; 8. c. 7 Am. Dec. 467 ; Fir^t National Bank v. Price, 33 Md. 487 ; s. c. 3 Am. Eep. 204; Lindsey v. Hill, 66 Me. 212; s. c. 22 Am. Bep. 564. The fed- eral courts will not enforce at the suit of a State its penal laws against a foreign corporation. Wisconsin v. Pelican Ins, Co., 127 U. S. 265, « See Taylor v. Penn. Co., 78 Ky. 348; Debevoise v. New York, L. E. & W. E. B. Co., 98 N. Y. 877; St. Louis, L M. &c. Co. ». McCormick, 9 S. W. Eep. 540 (Tex.); Dennick v. Bailroad Co., 103 tj. S. 11, and cases collected in Cooley on Torts, pp. 311-31^. 152 CONSTITUTIONAL' LIMITATIONS. [CH. V. Other Limitations of Legislative AwtJiority. Besides the limitations of legislative authority to which we have referred, others exist which do not seem to call for special remark. Some of these are prescribed by cohstitutioris,i but . 1 The restrictions upon State legisla- tive authority are much more extensive in some constitutions than in others. The Constitution of Missouri of 1865 had the following provision: "The General .As- sembly shall not pass special laws divor- cing any named parties, or declaring any named person of age, or authorizing any named minor to sell, lease, or encumber his or her property, or providing for the sale of the real estate of any named minor or other person laboring under legal disability, by any executor, admin- istrator, guardian, trustee, or other per- son, or establishing, locating, altering the course, or effecting the construction of roads, or the building or repairing of bridges, or establishing, altering, or vacat- ing any street, avenue, or alley in any city or town, or extending the time for the assessment or collection of taxes, or other- wise relieving any assessor or collector . Hawkins, 44 Ohio St. 98; State v. An- derson, id. 247 ; Bwing v. Hoblitzelle, 85 Mo. 64; Kelly v. Meeks, 87 Mo. 396; State V. Co. Court, 89 Mo. 237; State V. Pond, 93 Mo. 606; State v. Donovan, 15 Pac. Eep. 783 (Nev.); Darrow v. People, 8 Col. 417 ; People v. Henshaw, 76 Cal. 436. And on the general sub- ject see further, Bourland v. Hildreth, 26 Cal. 161; Brooks v. Hyde, 87 Cal. 366 ; McAunich v. Mississippi, &c. R. R. Co., 20 Iowa, 338; Rice v. State, 8 Kan. 141 ; Jackson v. Shaw, 29 Cal. 267 ; Gentile o. State, 29 Ind. 409; State v. Parkinson, 5 Nev. 15 ; Ensworth v. Albin, 46 Mo. 450; People v. Wallace, 70 111. 680; State v. Camden Common Pleas, 41 N. J. 495 ; O'Kane v. Treat, 25 111. 657 ; Commonwealth v. Palton, 88 Pa. St. 258 ; Cox V. State, 8 Tex. App. 264; State V. Monahan, 69 Mo. 656 ; State v. Clark, 23 Minn. 422 ; Speight v. People, 87 111. 595. As to what differences should un- derlie a classification, see Cobb v. Bord, 40 Minn. 479. So where the legisla- ture, for urgent reasons, may suspend the rules and allow a bill to be read twice on the same day, what constitutes a case of urgency is a question for the legislative discretion. Hull v. Miller, 4 Neb. 503. The legislature's power over its own proceedings cannot be controlled by a statute requiring notice in advance of the session, in case of petition affecting private interests. Opinion of Court, 68 N. H. 625. 1 Walker v. Cincinnati, 21 Ohio St. 14, 41. 154 CONSTITUTIONAL LIMITATIONS. [Cfl. V. assumed to exercise one that is unlawfulX Where the power which is exercised is legislative in its character, the courts can enforce only those limitations which the constitution imposes ; not those implied restrictions which, resting in theory only, the people have been satisfied to leave to the judgment, patriotism, and sense of justice of their representatives.^ 1 State 0. McCann, 21 Ohio St. 198, St. 848; Mount t;. Eichey, 90 Ind. 29. 212 ; Adams v. Howe, 14 Mass. 340 ; s. c. See cases, post, pp. 200, 201. 7 Am. Dec. 216 ; State v. Smith, 44 Ohio CH. VI.] OF THE ENACTMENT OF LAWS. 165 CHAPTER VI. OP THE ENACTMENT OP LAWS. When the supreme power of a country is wielded by a single man, or by a single body of men, any discussion, in the courts, of the rules which should be observed in the enactment of laws must generally be without practical value, and in fact imperti- nent ; for, whenever the unfettered sovereign power of any coun- try expresses its will in the promulgation of a rule of law, the expression must be conclusive, though proper and suitable forms may have been wholly omitted in declaring it. ' It is a necessary attribute of sovereignty that the expressed will of the sovereign is law ; and while we may question and cross-question the words employed, to make certain of the real meaning, and may hesitate and doubt concerning it, yet, when the intent is made out, it must govern, and it is idle to talk of forms that should have sur- rounded the expression, but do not. But when the legislative power of a State is to be exercised by a department composed of two branches, or, as in most of the American States, of three branches, and these branches have their several duties marked out and prescribed by the law to which they owe their origin, and which provides for the exercise of their powers in certain modes and under certain forms, there are other questions to arise than those of the mere intent of the law-makers, and sometimes forms become of the last importance. For in such case not only is it important that the will of the, law-makers be clearly expressed, but it is also essential that it be expressed in due form of law; since nothing becomes law simply and solely because men who possess the legislative power will that it shall be, unless they ex- press their determination to that effect, in the mode pointed out by the instrument which invests them with the power, and under all the forms which that instrument has rendered essential.^ 1 A bill becomes a law only when it 48 Ala. 115; s. c. 17 Am. Rep. 28; Legg has gone through all the forms made ne- v. Annapolis, 42 Md. 203 j Walnut v. cessary by the constitution to give it va- Wade, 103 U. S. 683. The power to lldity. Jones v. Hutchinson, 43 Ala. 721 ; declare whether an act has become a State ». Piatt, 2 S. C. 150 ; s. o. 16 Am. law is judicial. Wolfe v. McCauU, 76 Bep. 647; People v. Commissioners of Va. 876. Highways, 54 N. Y. 276; Moody v. State, 156 CONSTITUTIONAL LIMITATIONS. [CH. V. And if, when the constitution was adopted, there were known and settled rules and usages, forming a part of the law of the coun- try, in reference to which the constitution has evidently been framed, and these rules and usages required the observance of particular forms, the constitution itself must also be understood as requiring them, because in assuming their existence, and being framed with reference to them, it has in effect adopted them as a part of itself, as much as if they were expressly incorporated in its provisions. Where, for an instance, the legislative power is to be exercised by two houses, and by settled and well-understood parliamentary law these two houses are to hold separate sessions for their deliberations, and the determination of the one upon a proposed law is to be submitted to the separate determination of the other, the constitution, in providing for two houses, has evi- dently spoken in reference to this settled custom, incorporating it as a rule of constitutional interpretation ; so that it would require no prohibitory clause to forbid the two houses from combining in one, and jointly enacting laws by the vote of a majority of alh All those rules which are of the essentials of law-making must be observed and followed; and it is only the customary rules of order and routine, such as in every deliberative body are always understood to be under its control, and subject to constant change at its will, that the constitution can be understood to have left as matters of discretion, to be establishfed, modified, or abol- ished by the bodies for whose government in non-essential mat- ters they exist. Of the two Souses of the Legislature} In the enactment of laws the two houses of the legislature are of equal importance, dignity, and power, and the steps which result in laws may originate indifferently in either. This is the general rule ; but as one body is more numerous than the other, and more directly represents the people, and in many of the States is renewed by more frequent elections, the power to origi- nate all money bills, or bills for the raising of revenue, is left exclusively, by the constitutions of some of the States, with this body, in accordance with the custom in England, which does not permit bills of this character to originate with the House of I The wisdom of a division of the legis- experiments in Pennsylvania and Georgia, lative department has been demonstrated based on Franklin's views, for which see by the leading writers on constitutional his Works, VoL V. p. 165, were the only law, as well as by general experience, ones made by any of the original States See De Lolme, Const, of England, b. 2, with a single house. The first Constitu- o. 3 ; Federalist, No. 22 ; 1 Kent, 208 ; tion of Vermont also provided for a single Story on Const. §§ 545-570. The early legislative body. CH. VI.] OF THE ENACTMENT OF LAWS. 157 Lords.i To these bills, however, the other house may propose alterations, and they require the assent of that house to their passage, the same as other bills. The time for the meeting of the legislature will be such time as is fixed by the constitution or by statute; but it may be called together by the executive in special session as the constitution may prescribe, and the two houses may also adjourn any general session to a time fixed by them for the holding of a special session, if an agreement to that effect can be arrived at; and if not, power is conferred by a majority of the constitutions upon the executive to prorogue and adjourn them. And if the executive in any case undertake to exercise this power to prorogue and adjourn, on the assumption that a disagreement exists between the two houses which war- rants his interference, and his action is acquiesced in by those bodies, who thereupon cease to hold their regular sessions, the legislature must be held in law to have adjourned, and no inquiry can be entered upon as to the riglitfulness of the governor's assumption that such a disagreement existed.^ ^ There are provisions in the Consti- tutions of Massachusetts, Delaware, Min- nesota, Mississippi, New Hampshire, New Jersey, Pennsylvania, South Carolina, Vermont, Indiana, Oregon, Kentucky, Louisiana, Alabama, Arkansas, Georgia, Virginia, Maine, and Colorado, requir- ing revenue bills to originate in the more popular branch of the legislature, but allowing the Senate the power of amendment usual in other cases. A bill to license saloons is a police regulation, not a revenue law. State v. Wright, 14 Oreg. 365. Money cannot be appropri- ated by joint resolution in Indiana. May V. Rice, 91 Ind. 546. During the second session of the forty-first Congress, the House of Representatives by their vote denied the right of the Senate under the Constitution to originate a bill repealing a law imposing taxes; but the Senate did not assent to this conclusion. In England the Lords are not allowed to amend money bills, and by resolutions of 5th and 6th July, 1860, the Commons deny their right even to reject them. ^ This question became important, and was passed upon in People v. Hatch, 33 III. 9. The Senate had passed a resolution for an adjournment of the session sine die on a day named, which was amended by the House by fixing a diflferent day. The Senate refused to concur, and the House then passed a resolution expressing a desire to recede from its action in amend- ing the resolution, and requesting a re- turn of the resolution by the Senate. While matters stood thus, the governor, assuming that such a disagreement ex- isted as empowered him to interfere, sent in his proclamation, declaring the legis- lature adjourned to a day named, and which was at the very end of the official term of the members. The message created excitement ; it does not seem lo have been at once acquiesced in, and a protest against the governor's authority was entered upon the journal ; but for eleven days in one house and twelve in the other no entries were made upon their journals, and it was unquestionable that practically they had acquiesced in the , action of the governor, and adjourned. At the expiration of the twelve days, a por- tion of the members came together again, and it was claimed by them that the message of the governor was without authority, and the two houses must be considered as having been, in point of law, in session during the intervening period, and that consequently any bills which had before been passed by them and sent to the governor for his approval, and which he had not returned within ten days, Sundays excepted, had become laws under the constitution. The Supreme 168 CONSTIT0TIONAL LIMITATIONS. [CH. VI. There are certain matters which each house determines for itself, and in respect to which its decision is conclusive. It chooses its own officers, except where, by constitution or statute, other provision is made ; it determines its own rules of proceed- ing ; it decides upon the election and qualification of its own members.^ These powers it is obviously proper should rest with the body immediately interested, as essential to enable it to enter upon and proceed with its legislative functions without liability to interruption and confusion. In determining questions concern- ing contested seats, the house will exercise judicial power, but generally in accordance with a course of practice which has sprung from precedents in similar cases, and no other authority ia at liberty to interfere. Each house has also the power to punish members for dis- orderly behavior, and other contempts of its authority, as well as to expel a member for any cause which seems to the body to render it unfit that he continue to occupy one of its seats. This power is generally enumerated in the constitution among those which the two houses may exercise, but it need not be specified in that instrument, Since it would exist whether expressly con- ferred or not. It is " a necessary and incidental power, to enable Court held that, as the two houses had practically acquiesced in the action of the governor, the session had come to an end, and that the members had no power to reconvene on their own motion, as had been attempted. The case is a very fall and valuable one on several points per- taining to legislative proceedings and au- thority. As to the governor's discretion in calling an extra session and revoking the call, see ante, p. 136, note. 1 In People V. Mahaney, 13 Mich. 481, it was held that the correctness of a deci- sion by one of the houses, that certam persons had been chosen members, could not be inquired into by the courts. In that case a law was assailed as void, on the ground that a portion of the members who voted tor it, and without whose votes it would not have had the requisite majority, had been given their seats in the house in defiance of law, and to the exclusion of others who had a majority of legal votes. See the same principle in State u. Jarrett, 17 Md. 809. See also Lamb v. Lynd, 44 Pa. St. 3.36 ; Opinion of Justices, 66 N. H. 670. In Kansas a question having some resemblance was disposed of differently. Tlie legislature gave seats to several persons as represent- atives of districts not entitled to repre- sentation at all. By the concurrent vote of four of these a certain bill was passed. Held, that it was illegally passed, and did not become a law. State v. Francis, 26 Kan. 724. The legislature cannot trans- fer its power to judge of the election of its members, to the courts. State v. Gil- man, 20 Kan. 651 ; s. c.27 Am. Rep. 189. See Dalton v. State, 43 Ohio St. 652. But courts may procure and present evi- dence to the legislature. In re McNeill, 111 Pa. St. 235. The legislative power to judge of the election of members is not possessed by municipal bodies : Peo- ple V. Hall, 80 N. Y. 117 ; nor by boards of supervisors : Robinson v. Cheboygan Superv., 49 Mich. 321 ; except when conferred by law. Mayor v. Morgan, 7 Mart. N. 8. 1 ; s. c. 18 Am. Dec. 232 ; Peabody v. School Committee, 115 Mass. 383; Cooley v. Fitzgerald, 41 Mich. 2. See Commonwealth v. Leech, 44 Pa. St. 882 ; Doran b. De Long, 48 Mich. 552. To exclude the jurisdiction of the courts, the council's power must be unequivocal. State V. Kempf, 69 Wis. 470; State v. Gates, 85 Minn. 885. CH. Vl.] OF THE ENACTMENT OF LAWS* 169 the house to perform its high functious, and is necessary to the safety of the State. It is a power of protection. A member may be physically, mentally, or morally wholly unfit ; he may be af- fected with a contagious disease, or insane, or noisy, violent, and disorderly, or in the habit of using profane, obscene, and abusive language." And, " independently of parliamentary customs and usages, our legislative houses have the power to protect them- selves by the punishment and expulsion of a member ; " and the courts cannot inquire into the justice of the decision, or even so much as examine the proceedings to see whether or not the proper opportunity for defence was furnished.^ Each house may also punish contempts of its authority by other persons, where they are committed in its presence, or where they tend directly to embarrass or obstruct its legislative pro- ceedings ; and it requires for the purpose no express provision of the constitution conferring the authority .^ It is not very well settled what are the limits to this power ; and in the leading case in this country the speaker's warrant for the arrest of the person adjudged guilty of contempt was sustained, though it did not show in what the alleged contempt consisted.^ In the leading English case a libellous publication concerning the house was treated as a contempt;* and punishment has sometimes been inflicted for assaults upon members of the house, not committed in or near the place of sitting, and for the arrest of members in disregard of their constitutional privilege.^ But in America the authority of legislative bodies in this regard is much less extensive than in England, and we are in danger, perhaps, of being misled by English precedents. The Parliament, before its separation into two bodies, was a high court of judica- ture, possessed of the general power, incident to such a court, of punishing contempts, and after the separation the power remained with each body, because each ^as considered to be a court of judicature and exercised the functions of such a court. American legislative bodies have not been clothed with the judicial function, 1 Hiss V. Bartlett, 3 Gray, 468. And Q. B. 451 ; Stewart v. Blaine, 1 McAiv see Anderson v. Dunn, 6 Wheat, thur, 453. 204. * Burdett v. Abbott, 14 East, 1. s Anderson v. Dunn, 6 Wheat. 204 ; ' Mr. Potter discusses such a case in Burdett v. Abbott, 14 East, 1 ; Burtiham his edition of Dwarris on Statutes, c. 18, V. Morrissey, 14 Gray, 226 ; State v. Mat- and Mr. Robinson deals with the case of thews, 37 N. H. 450. See post, p. 663, an arrest for a criminal act, not com- QOtg, mitted in the presence of the house, in ' Anderson v. Dunn, 6 Wheat. 204; the preface to the sixth volume of Iris questioned and rejected as to some of its Practice. As to the general right of reasoning in Kilbourn v. Thompson, 103 Parliament to punish for contempt, see U. S. 168. And see Gosset w. Howard, 10 Gosset u. Howard, 10 Q. B. 411. 160 CONSTITUTIONAL LIMITATIONS. [CH. VL and they do not therefore possess the general power to punish for contempt; but, as incidental to their legislative authority, they have the power to punish as contempts those acts of members or others which tend to obstruct the performance of legislative duty, or to defeat, impede, or embarrass the exercise of legislative power.i When imprisonment is imposed as a punishment, it must ter- minate with the final adjournment of the house, and if the prisoner be not then discharged by its order, he may be released on habeas corpus.^ By common parliamentary law, the members of the legislature are privileged from arrest on civil process during the session of that body, and for a reasonable time before and after, to enable them to go to and return from the same. JBy the constitutions of some of the States this privilege has been enlarged, so as to exempt the persons of legislators from any service of civil pro- cess,^ and in others their estates are exempt from attachment for some prescribed period.* For any arrest contrary to the parlia- mentary law or to these provisions, the house of which the person arrested is a member may give summary relief by ordering his discharge, and if the order is not complied with, by punishing the persons concerned in the arrest as for a contempt of its authority. The remedy of tlie member, however, is not confined to this mode of relief. His privilege is not the privilege of the house merely, but of the people, and is conferred to enable him to dis- charge the trust confided to him by his constituents ; ^ and if the house neglect to interfere, the court from which the process issued 1 See the subject considered fully and civil cases. Gentry v. Griffith, 27 Tex. learnedly in Kilbourn v. Thompson, 103 461 ; Case v. Korabacher, 15 Mich. 637. U. S. 168. So, of a member of Congress during the 2 Jefierson's Manual, § 18 ; Prichard's session. Merrick v. Giddings, MacAr. & Case, 1 Lev. 165 ; 1 Sid. 245 ; T. Eaym. Mack. 55. But in Miner v. Markham, 120. 28 Fed. Rep. 387, a California member 8 " Senators and representatives shall, en route to Washington was held exempt in all cases except treason, felony, or from service of summons in Wisconsin, breach of the peace, be privileged from * The Constitution of Rhode Island arrest. They shall not be subject to any provides that " the person of every mem- civil process during the session of the le- ber of the General Assembly shall be ex- gislature, or for fifteen days next before empt from arrest, and his estate from the commencement and after the termina- attachment, in any civil action, during the tion of each session." Const, of Mich, session of the General Assembly, and art. 4, § 7. A like exemption from civil two days before the commencement and process is found in the Constitutions of two days after the termination thereof, Kansas, Nebraska, Alabama, Arkansas, and all process served contrary hereto California, Missouri, Mississippi, Wiscon- shall be void." Art. 4, § 5. sin, Indiana, Oregon, and Colorado. Ex- ' CofBn v. Coffin, 4 Mass. 27 ; s. c. emption from arrest is not violated by 3 Am. Dec. 189. the service of citations or declarations in CH. VI.] OF THE ENACTMENT OF LAWS. 161 should set it aside on the facts being represented,^ and any court or officer having authority to issue writs of habeas corpus may also inquire into the case, and release the party from the unlaw- ful imprisonment.^ Each house must also be allowed to proceed in its own way in the collection of such information as may seem important to a proper discharge of its functions,^ and whenever it is deemed desirable that witnesses should be examined, the power and authority to do so is very properly referred to a committee, with any such, powers short of final legislative or judicial action as may seem necessary or expedient in the particular case. Such a committee has no authority to sit during a recess of the house which has appointed it, without its permission to that effect ; but the house is at liberty to confer such authority if it see fit.* A refusal to appear or to testify before such committee, or to pro- duce books or papers, would be a contempt of the house ; ^ but the committee cannot punish for contempts ; it can only report 1 Courts do not, however, ex officio notice the privileges of members; they must be brought to their attention by some proper motion. Prentis v. Com- monwealth, 5 Band. 697 ; s. c. 16 Am. Dec. 782, and note. 2 On this subject, Cashing on Law and Practice of Parliamentary Assemblies, §§ 546-597, will be consulted with profit. It is not a trespass to arrest a person privi- leged from arrest, even though the oiHeer may be aware of the fact. The arrest is only voidable ; and in general the party will waive the privilege unless he applies for discharge by motion or on habeas corpus. Tarlton v. Fisher, Doug. 671 ; Fletcher v. Baxter, 2 Aik. 224 ; Fox v. Wood, 1 Rawle, 143 ; Sperry v. Willard, 1 Wend. 32; Wilmarth v. Burt, 7 Met. 257; Aldrich v. Aldrich, 8 Met. 102; Chase v. Fish, 16 Me. 132. But where the privilege is given on public grounds, or for the benefit of others, discharge may be obtained on the motion of any party concerned, or made by the court sua sponte. * See Tillinghast v. Carr, 4 McCord, 152. * Branham v. Lange, 16 Ind. 497; Marshall v. Harwood, 7 Md. 466. See also parliamentary cases, 5 Grey, 374 ; 9 Grey, 350 ; 1 Chandler, 50. s In re Falvey, 7 Wis. 630 ; Burnham V. Morrissey, 14 Gray, 226; People v. Keeler, 99 N. T. 463. In the last case a statute expressly permitted the house to punish for such contempt. But the priv- ilege of a witness to be exempt from a compulsory disclosure of his own criminal conduct is the same when examined by a legislative body or committee as when sworn in court. Emery's Case, 107 Mass. 172. In the Matter of Kilbourn (May, 1876), Chief Justice Carter, of the Su- preme Court of the District of Columbia> discharged on habeas corpus a person com- mitted by the House of Representatives for a contempt in refusing to testify; holding that as the refusal was an indict- able offence by statute, a trial therefor must be in the courts, and not elsewhere. If this is correct, the necessities of legis- lation will require a repeal of the statute; for if, in political cases, the question Of punishment for failure to giv« informa- tion must be left to a jury, few convic- tions are to be expected, and no wholesome fear of the consequences of a refusal. The legality of the same arrest was con- sidered afterwards by the federal Supreme Court, and was not sustained, the court holding that the house exceeded its au- thority in the attempted investigation. Kilbourn v. Thompson, 103 U. S. 168. On questions of conflict between the legisla- ture and the courts in matters of con- tempt, the great case of Stockdale v. Hansard, 9 Ad. & El. 1 ; s. c. 3 Per. & Dav. 330, is of the highest interest. See May, Const. Hist. c. 7. 11 162 CONSTITUTIONAL LIMITATIONS. [CH. yi. the conduct of the offending party to the house for its action. The power of the committee will terminate with the final dissolu- tion of the house appointing it. Each house keeps a journal of its proceedings, which is a public record, and of which the courts are at liberty to take judicial notice.^ If it should appear from these journals that any act did not receive the requisite majority, or that in respect to it the legislature did not follow any requirement of the constitution, or that in any other respect the act was not constitutionally adopted, » Spangler ». Jacoby, 14 111. 297 ; Tur- ley V. Logan Co., 17 111. 151 ; Jones v. Hutchinson, 43 Ala. 721 ; State v. Moffit, 5 Ohio, 358 ; Miller v. State, 3 Ohio St. 475 ; Fordyce v. Godman, 20 Ohio St. 1 ; People V. Supervisors of Chenango, 8 N. Y. 317 ; People v. Mahaney, 13 Mich. 481 ; Southwark Bank v. Commonwealth, 2 Pa. St. 446; McCulloch v. State, 11 Ind. 430 ; Oslmrn v. Staley, 5 W. Va. 85 ; s. c. 13 Am. Rep. 640; State v. Piatt, 2 S. C. N. 8. 150; s. c. 16 Am. Hep. 647; Moody V. State, 48 Ala. 115; Houston, &c. R. R. Co. V. Odum, 53 Tex. 343 ; Gardner V. The Collector, 6 Wall. 499; South Ottawa V. Perkins, 94 U. S. 260. The presumption always is, when the act, as signed and enrolled, does not show the contrary, that it has gone through all ne- cessary formalities : State v. McConnell, 3 Lea, 341 ; Blessing v. Galveston, 42 Tex. 641; State v. Francis, 26 Kan. 724; and some cases hold that the enrolled statute is conclusive evidence of its due passage and validity. See Sherman v. Story, 30 Cal. 253; People v. Burt, 43 Cal. 560; Louisiana Lottery Co. v. Richoux, 23 La. Ann. 743; s. c. 8 Am. Rep. 602 ; Green v. Weller, 32 Miss. 650 ; Swan v. Buck, 40 Miss. 268 ; Ex parte Wren, 63 Miss. 512 ; Pacific R. R. Co. v. Governor, 23 Mo. 353 ; State V. Swift, 10 Nev. 176 ; Pangborn v. Young, 32 N. J. 29 ; Evans v. Brown, 30 Ind. 514; Duncombe v. Frindle, 12 Iowa, 1; Terr. i'. O'Connor, 41 If. W. Rep. 746 (Dak.). Others hold that the prima facie case may be overthrown by the jour- nals: Spangler v. Jacoby, 14 III. 297; Houston, &c. R. R. Co. v. Odum, 53 Tex. 343; Burr w. Ross, 19 Ark. 250; Smithee V. Campbell, 41 Ark. 471 ; Jones v. Hutch- inson, 43 Ala. 721 ; Moog v. Randolph, 77 Ala. 597 ; Berry v. Baltimore, &c. R. R. Co., 41 Md. 446 ; s. o. 20 Am. Rep. 69 ; Green v. Weller, 32 Miss. 650; People v. McElroy, 40 N. W. Rep. 750 (Mich.) ; Brewer v. Mayor, &c., 86 Tenn. 732 ; so, if an act is passed over a veto, differing from an ordinary enrolled act. State v. Denny, 21 N. E. Rep. 274 (Ind.). The journal entry, if in compliance with a con- stitutional requirement, is the best evi- dence of a resolution, and cannot be contra- dicted. Koehler v. Hill, 60 Iowa, 643. So, as to the entry of the number voting- Wise V. Bigger, 79 Va. 269. The journal cannot be contradicted by parol to show that a mere title or skeleton was intro- duced as a bill. Attorney-General v. Rice, 64 Mich. 385. If a journal shows an act passed, it cannot be attacked on the ground that some members voting for it were improperly seated. State v. Smith, 44 Ohio St. 348. And see Opinions of Justices, 52 N. H. 622 ; Hensoldt v. Peters- burg, 63 111. 157 ; Larrison v. Peoria, &c. R. R. Co., 77 111. 11 ; People v. Commis- sioners of Highways, 54 N. Y. 276 ; Eng- lish V. Oliver, 28 Ark. 317 ; In re Wellman, 20 Vt. 653 ; Osburn v. Staley, 5 W. "Va. 85; Moody v. State, 48 Ala. 115; s. c. 17 Am. Rep. 28 ; State v. Piatt, 2 S. C. 150 ; s. 0. 16 Am. Rep. 647 ; Worthen v. Bad- get, 32 Ark. 496; Southwark Bank v. Commonwealth, 25 Pa. St. 446 ; Fordyce V. Godman, 20 Ohio St. 1 ; People v. Stanie, 35 111. 121 ; Supervisors v. Keenan, 2 Minn. 321 ; People v. Mahaney, 13 Mich. 481 ; Berry v. Doane Point R. R. Co., 41 Md. 446. Compare Brodnax v. Groom, 64 N. C. 244 ; Annapolis v. Harwood, 32 Md. 471. It has been held that "where the constitution requires previous notice of an application for a private act, the courts cannot go behind the act to inquire whether the notice was given. Brodnax V. Groom, 64 N. C. 244. See People u.Hurl- but, 24 Mich. 44 ; Day v. Stetson, 8 Me. 365; M'Clinch v. Sturgis, 72 Me. 288; Davis V. Gaines, 48 Ark. 870. CH. n.] OF THE ENACTMENT OF LAWS. 163 the courts may act upon this evidence, and adjudge the statute void.^ But whenever it is acting in the apparent performance of legal functions, every reasonable presumption is to be made in favor of the action of a legislative body ; it will not be pre- sumed in any case, from the mere silence of the journals, that either house has exceeded its authority, or disregarded a con- stitutional requirement in the passage of legislative acts, unless where the constitution has expressly required the journals to show the action taken,, as, for instance, where it requires the yeas and nays to be entered.^ The law also seeks to cast its protection around legislative sessions, and to shield them against corrupt and improper influ- ences, by making void all contracts which have for their object to influence legislation in any other manner than by such open and public presentation of facts, arguments, and appeals to reason as are recognized as proper and legitimate with all public bodies. While counsel may be properly employed to present the reasons in favor of any public measure to the body authorized to pass upon it, or to any of its committees empowered to collect facts and hear arguments, and parties interested may lawfully contract to pay for tiiis service,* yet to secretly approach the members of such a body with a view to influence their action at a time and in a manner that do not allow the presentation of opposite views, is improper and unfair to the opposing interest ; and a contract to pay for this irregular and improper service would not be en- forced by the law.* 1 See cases cited in preceding note ; R. E. Co. v. Wren, 43 111. 77 ; Grob v. also Prescott u. Trustees, &c., 19 111. 324 ; Cushman, 45 111. 119; Bedard u. Hall, Koehler v. Hill, 60 Iowa, 543, 549. 44 111. 91. The court will not act upon ^ Miller v. State, 8 Ohio St. 475 ; Mc- the admission of parties that an act was Culloch V. State, 11 Ind. 424 ; Supervi- not passed in the constitutional manner, sors V. People, 25 111. 181 ; Hall v. Steele, Happel ti. Brethauer, 70 III. 166 ; Attoiv 82 Ala. 562; Glidewell v. Martin, 11 ney-General «. Eice, 64 Mich. 385. S. W. Eep. 882 (Ark.) ; People v. Dunn, The Constitution of Alabama, art. 4, 22 Pao. Eep. 140 (Cal.) ; State v. Brown, § 27, requires the presiding oflSeer of each 20 Fla. 407 j Matter of Vanderberg, 28 house, in the presence of the house, to Kan. 243 ; State v. Peterson, 38 Minn, sign acts " after the titles have been pub- 143; State v. Algood, 87 Tenn. 163; licly read immediately before signing, and Hunt V. State, 22 Tez. App. 396. But the fact of signing shall be entered on the where a statute can only be enacted by journal." Tliis seems a very imperative a certain majority, e. ^. two-thirds, it requirement. But in Colorado a like pro- must affirmatively appear by the printed vision is held directory, and the presump- statute or the act on file that such a tion in ease of silence of journal is in vote was had. People v. Commission- favor of the act. In re Eoberts, 5 Col. 525. ers of Highways, 54 N. Y. 276. It " See Wildey v. Collier, 7 Md. 273; seems that, in Illinois, if one claims Bryan u. Reynolds, 5 Wis. 200; Brown w. that a supposed law was never passed. Brown, 34 Barb. 533; Eussell v. Burton, and relies upon the records to show it, 66 Barb. 539. he must prove them. Illinois Cent. * This whole subject was very fully 164 CONSTITUTIONAL LIMITATIONS. [CH. TL The Introduction and Passage of Bills. Any member may introduce a bill in the house to which he belongs, in accordance with its rules ; and this he may do at any considered in the case of Frost v. Inhab- itants of Belmont, 6 Allen, 152, which was a bill filed to restrain the payment by the town of demands to tlie amount of nearly $9,000j which the town had Toted to pay as expenses in obtaining their act of in- corporation. By the court. Chapman, 3. : " It is to be regretted that any persons should have attempted to procure an act of legislation in this Commonwealth, by such means as some of these items indi- cate. By the regular course of legisla- tion, organs are provided through which any parties may fairly and openly ap- proacli the legislature, and be heard with proofs and arguments respecting any legis- lative acts which they may be interested in, whether public or private. These or- gans are the various committees appointed to consider and report upon the matters to be acted upon by the whole body. When private interests are to be affected, notice is given of the hearings before these committees; and thus opportunity is given to adverse parties to meet face to face and obtain a fair and open hearing. And though these committees properly dis- pense with many of the rules which regu- late hearings before judicial tribunals, yet common fairness requires that neither party shall be permitted to have secret consultations, and exercise secret influ- ences that are kept from the knowledge of the other party. The business of ' lobby members ' is not to go fairly and openly before the committees, and present state- ments, proofs, and arguments that the other side has an opportunity to meet and refute if they are wrong, but to go se- cretly to the members and ply them with statements and arguments that the other side cannot openly meet, however erro- neous they may be, and to bring illegiti- mate influences to bear upon them. If the • lobby member ' is selected because of his political or personal influence, it aggravates the wrong. If his business is to unite various interests by means of projects that are called ' log-rolling,' it is still worse. The practice of procuring members of the legislature to act under the influence of what they have eaten and drank at houses of entertainment, tends to render those of them who yield to such influences wholly unfit to act in such cases. They are disqualified from act- ing fairly towards interested parties or towards the, public. The tendency and object of these influences are to obtain by corruption what it is supposed cannot be obtained fairly. " It is a well-established principle, that all contracts which are opposed to public policy, and to open, upright, and fair dealing, are illegal and void. The prin- ciple was fully discussed in Fuller v. Dame, 18 Pick. 472. In several other States it has been applied to cases quite analogous to the present case. " In Pingrey v. Washburn, 1 Aik. 264, it was held in Vermont that an agree- ment^ on the part of a corporation, to grant to individuals certain privileges in consideration that they would withdraw their opposition to the passage of a legis- lative act touching the interests of the corporation, is against sound policy, pre- judicial to correct and just legislation, and void. In Gulick v. Ward, 5 Halst. 87, it was decided in New Jersey that a con- tract which contravenes an act of Con- gress, and tends to defraud the United States, is void. A. had agreed to give B. $100, on condition that B. would forbear to propose or offer himself to the Post- master-General to carry the mail on a certain mail route, and it was held that the contrac-t was against public policy and void. The general principle as to contracts contravening public policy was discussed in that case at much length. In Wood V. McCann, 6 Dana, 866, the de- fendant had employed the plaintiff to assist him in obtaining a legislative act in Kentucky, legalizing his divorce from a former wife, and his marriage with his present wife. The court say : ' A lawyer may be entitled to compensation for writ- ing a petition, or even for making a pub- lic argument before the legislature or a committee thereof; but the law should not help him or any other person to a recompense for exercising any personal influence, in any way, in any act of legis- ca VI.] OF THE ENACTMENT OF LAWS. 165 time when the house is iu session, unless the constitution, the law, or the rules of the house forbid. The Constitution of Michi- lation. It is certainly important to just and wise legislation, and therefore to tlie most essential interests of the public, that the legislature should be perfectly free from any extraneous influence which may either corrupt or deceive the members, or any of them.' " In Clippinger v. Hepbaugh, 5 Watts and S. 315, it was decided in Pennsylvania that a contract to procure or endeavor to procure the passage of an act of the legis- lature by using personal influence with tlie members, or by any sinister means, was void, as being inconsistent with pub- lic policy and the integrity of our political institutions. And an agreement for a contingent fee to be paid on the passage of a legislative act was held to be illegal and void, because it would be a strong incentive to the exercise of personal and sinister influences to efl'ect the object. "The subject has been twice adjudi- cated upon in New York. In Harris v. Koof, 10 Barb. 489, the Supreme Court held that one could not recover for ser- vices performed in going to see individual members of the house, to get them to aid in voting for a private claim, the services not being performed before the house as a body nor before its authorized commit- tees. In Sedgwick v. Stanton, 4 Kernan, 289, the Court of Appeals held the same doctrine, and stated its proper limits. Sel- den,3., makes the following comments on the case of Harris o. Roof: 'Now, the court did not mean by this decision to hold that one who has a claim against the State may not employ competent persons to aid him in properly presenting such claim to the legislature, and in supporting it with the necessary proofs and argu- ments. Mr. Justice Hand, who delivered the opinion of the court, very justly dis- tinguishes between services of the nature of those rendered in that case, and the procuring and preparing the necessary documents in support of a claim, or act- ing as counsel before the legislature or 6ome committee appointed by that body. Persons may, no doubt, be employed to conduct an application to the legislature, as well as to conduct a suit at law ; and may contract for and receive pay for their services in preparing documents, collect- ing evidence, making statements of facts, or preparing and making oral or written arguments, provided all these are used or designed to be used before the legislature or some committee thereof as a body; but they cannot, with propriety, be em- ployed to exert their personal influence with individual members, or to labor in any form privately with such members out of the legislative halls. Whatever is laid before the legislature in writing, or spoken openly or publicly in its presence or that of a committee, if false in fact, may be disproved, or if wrong in argu- ment may be refuted ; but that which is whispered into the private ear of individ- ual members is frequently beyond the reach of correction. The point of objec- tion in this class of cases, then, is, the personal and private nature of the ser- vices to be rendered.' " In Fuller v. Dame, cited above, Shaw, Ch. J., recognizes the well-established righf; to contract and pay for professional ser- vices when the promisee is to act as atr tomey and counsel, but remarks that ' the fact appearing that persons do so act prevents any injurious effects from such proceeding. Such counsel is considered as standing in the place of his principi^l, and his arguments and representations are weighed and considered accordingly.' He also admits the right of disinterested persons to volunteer advice ; as when a person is about to make a will, one may represent to him the propriety and expe- diency of making a bequest to a particu? lar person ; and so may one volunteer nd- vice to another to marry another person ; but a promise to pay for such service is void. "Applying the principles stated in these cases to the bills which the town voted to pay, it is manifest that some of the money was expended for objects that are contrary to public policy, and of a most reprehensible character, and which could not, therefore, form a legal consid- eration for a contract." See, further, a full discussion of the same subject, and reaching the same con- clusion, by Mr Justice Grier, in Marshall V. Baltimore & Ohio B.B. Co., 16 How. 314. A sale c^f a town office, though by the 166 CONSTITUTIONAL LIMITATIONS. [oh. VL gan provides that no new bill shall be introduced into either house of the legislature after the first fifty days of the session shall have expired ; ^ and the Constitution of Maryland provides that no bill shall originate in either house within the last ten days of the session.'^ The purpose of these clauses is to prevent hasty and improvident legislation, and to compel, so far as any previous law can accomplish that result, the careful examination of proposed laws, or at least the affording of opportunity for that purpose ; which will not always be done when bills may be introduced up to the very hour of adjournment, and, with the concurrence of the proper majority, put immediately upon their passage.^ town itself, cannot be the consideration for a contract. Meredith v. Ladd, 2 N. H. 617. See Carleton v. Whitclier, 5 N. H. 196; Eddy v. Capron, 4 K. I. 394. A town cannot incur expenses in opposing before a legislative committee a division of the territorial limits : Westbrook v. Deering, 63 Me. 231 ; or to pay the ex- penses of a committee to procure the an- nexation of the town to another. Minot V. West Boxbury, 112 Mass. 1 ; s. c. 17 Am. Bep. 52. That contracts for lobby ser- vices in procuring or preventing legisla- tion are void, see Usher v. McBratney, 3 Dill. 385; Trist v. Child, 21 Wall. 441 ; McKee «. Cheney, 52 How. (N. r.) 144;, Weed V. Black, 2 MacArthur, 268 ; Swee- ney V. McLeod, 15 Oreg. 330; Cary v. Western U. Tel. Co , 47 Hun, 610. Or for influence in procuring contracts. Tool Co. V. Norris, 2 Wall. 45. And any con- tract the purpose of which is to influence a public officer or body to favor persons in the performance of his public duty is void, on grounds of public policy. Ordi- neal v. Barry, 24 Miss. 9. The same, general principle will be found applied in the following cases : Swayze v. Hull, 8 N. J. 54 ; s. c. 14 Am. Dec. 399 ; Wood V. McCann, 6 Dana, 366; Hatzfield v. Gulden, 7 Watts, 152 ; Gil v. Davis, 12 La. Ann. 219 ; Powers v. Skinner, 34 Vt. 274; Frankfort v. Winterport, 54 Me. 250 ; Rose v. Truax, 21 Barb. 361 ; Dev- lin V. Brady, 32 Barb. .518 ; Oscanyan v. Arms Company, 103 U. S. 261 ; Meguire V. Corwin, 3 MacArthur, 81. See further, post, 773, note. 1 Art. 4, § 28. ^ Art. 3, § 26. In Arkansas there is a similar provision, limiting the time to three days. Art. 5, § 24. ^ A practice has sprung up of evading these constitutional provisions by intro- ducing a new bill after the time has ex- pired when it may constitutionally be done, as an amendment to some pending bill, the whole of which, except the enact- ing clause, is struck out to make way for it. Thus, the member who thinks he may possibly have occasion for the intro- duction of a new bill after the constitu- tional period has expired, takes care to introduce sham bills in due season which he can use as stocks to graft upon, and which he uses irrespective of their char- acter or contents. The sham bill is per- haps a bill to incorporate the city of Slam. One of the member's constituents applies to him for legislative permission to con- struct a dam across the Wild Cat River. Forthwith, by amendment, the bill entitled a bill to incorporate the city of Siam has all after the enacting clause stricken out, and it is made to provide, as its sole object, that John Doe may construct a dam across the Wild Cat. With this title and in this form it is passed ; but the house then considerately amends the title to correspond with the purpose of the bill, and the law is passed, and the constitution at the same time saved I This trick is so transparent, and so clearly in violation of the constitution, and the evidence at the same time is so fully spread upon the record, that it is a matter of surprise to find it so often resorted to. A bill to create a township may be amended after fifty days so as to make the same territory a county. Pack v. Barton, 47 Mich. 520. For a bill to create a township from certain territory may be substituted one to incorporate a city in the same county. People v. McElroy, 40 N. W. Rep. 750 (Mich.). But a bill to create the County of L. out of the County CH. VI.] OF THE ENACTMENT OF LAWS. 167 For the same reason it is required by the constitutions of several of the States, that no bill shall have the force of law until on three several days it be read in each house, and free discussion allowed thereon ; unless, in case of urgency, four-fifths or some other specified majority of the house shall deem it expedient to dispense with this rule. The journals which each house keeps of its pro- ceedings ought to show whether this rule is complied with or not ; but in case they do not, the passage in the manner provided by the constitution must be presumed, in accordance with the general rule which presumes the proper discharge of official duty.^ In the reading of a bill, it seems to be sufficient to read the written document that is adopted by the two houses ; even though some- thing else becomes law in consequence of its passage, and by reason of being referred to in it.^ Thus, a statute which incorporated a military company by reference to its constitution and by-laws, was held valid notwithstanding the constitution and by-laws, which would acquire the force of law by its passage, were not read in the two houses as a part of it.^ But there cannot be many cases, we should suppose, to which this ruling would be applicable. of W. cannot be amended so as to make M. County out of X. County. Il6-creation of New Counties, 9 Col. 624. See, also. Hall V. Steele, 82 Ala. 562. 1 Supervisors of Schuyler Co. v. Peo- ple, 25 111. 181 ; Miller v. State, 3 Ohio St. 476. In People v. Starne, 35 111. 121, it is said the courts should not enforce a legis- lative act unless there is record evidence, from the journals of the two houses, that every material requirement of the constitution has been satisfied. And see Ryan v. Lynch, 68 III. 160. Contra, State V. McConnell, 8 Lea, 841 ; Blessing v. Galveston, 42 Tex. 641. The clause in the Constitution of Ohio is : " Every bill shall be fully and distinctly read on three different days, unless, in case of urgency, three-fourths of the house in which it shall be pending shall dispense with this rule ; " and in Miller v. State, 3 Ohio St. 475, and Pim v. Nicholson, 6 Ohio St. 176, this provision was held to be merely directory. The distinctness with which any bill must be read cannot possibly be defined by any law ; and it must always, from the necessity of the case, rest with the house to determine finally whether in this particular the constitution has been complied with or not ; but the rule re- specting three several readings on differ- ent days is specific, and capable of being precisely complied with, and we do not see how, even under the rules applied to statutes, it can be regarded as directory merely, provided it has a purpose beyond the mere regular and orderly transaction of business. That it has such a purpose, that it is designed to prevent hasty and improvident legislation, and is therefore not a mere rule of order, but one of pro- tection to the public interests and to the citizens at large, is very clear ; and inde- pendent of tlie question whether definite constitutional principles can be dispensed with in any case on the ground of their being merely directory, we cannot see how this can be treated as anything but 'mandatory. See People v. Campbell, 8 111. 466; McCulloch v. State, 11 Ind.424; Weill V. Kenfield, 54 Cal. Ill ; Chicot Co. V. Davies, 40 Ark. 200. Reading twice by title and once at length is sufficient. Peo- ple V. MoElroy, 40N.W. Rep. 750 (Mich.). One reading may be in committee of the whole. Re-reading of Bills, 9 Col. 641. 2 Dew V. Cunningham, 28 Ala. 466. Congress may adopt a law by reference. District of Columbia v. Washington Gas Light Co., 3 Mackey, 343. See,' further, Baird v. State, 12 S. W. Rep. 566 (Ark.) ; Beard v. Wilson, id. 567 ; Titusville Iron Works V. Keystone Oil Co., 122 Pa. St. 627. * Bibb County Loan Association v. 168 CONSTITUTIONAL LIMITATIONS. [CH. TL It is also provided in the constitutions of some of the States that, on the final passage of every bill, the yeas and nays shall be entered on the journal. Such a provision is designed to serve an impor- tant purpose in compelling each member present to assume as well as to feel his due share of responsibility in legislation ; and also in furnishing definite and conclusive evidence whether the bill has been passed by the requisite majority or not. " The constitution prescribes this as the test by which to determine whether the requisite number of members vote in the affirmative. The office of the journal is to record the proceedings of the house, and authenticate and preserve the same. It must appear on the face of the journal that the bill passed by a constitutional majority. These directions are all clearly imperative. They are expressly enjoined by the fundamental law as matters of substance, and cannot be dispensed with by the legislature." ^ For the vote required in the passage of any particular law the reader is referred to the constitution of his State. A simple majority of a quorum is sufficient, unless the constitution estab- lishes some other rule ; and where, by the constitution, a two- thirds or three-fourths vote is made essential to the passage of any particular class of bills, two-thirds or three-fourths of a quorum will be understood, unless the terms employed clearly . indicate that this proportion of all the members, or of all those elected, is intended.2 Richards, 21 Ga. 592. And see Pulford separate action in every ease ; and that, V. Fire Department, 31 Mich. 458. when resorted to, it is usually for the 1 Spangler v. Jacoby, 14 JR. 297 ; Su- purpose of avoiding another provision of pervisors of Schuyler Co. v. People, 25 the constitution, which seeks to preclude 111. 183; Kyan v. Lynch, 68 111. 160; "log-rolling" legislation, by forbidding Steckert v. East Saginaw, 22 Mich. 104 ; the incorporation of distinct measures in People V. Commissioners of Highways, one and the same statute. 54 N. Y. 276 ; Post v. Supervisors, 105 ' Southworth v. Palmyra & Jackson- U. S. 667. For a peculiar case, see Divi- burg R. R. Co., 2 Mich. 287 ; State v. sionof Howard County, 15 Kan. 194. As McBride, 4 Mo. 303; 8. c. 29 Am. Dec. to what is sufficient evidence in a journal 636. By most of the constitutions either of such vote. In re Roberts, 5 Col. 525. all the laws, or laws on some particular An act which is invalid because not passed subjects, are required to be adopted by by the requisite number of votes may be a majority vote, or some other proportion validated indirectly by subsequent legis- of " all the members elected," or of " the lative action recognizing it as valid, whole representation." These and similar Attorney-General v. Joy, 55 Mich. 94. phrases require all the members to be There have been cases, as we happen taken into account whether present or to know, in which several bills have not. Where a majority of all the mem- been put on their passage together, the bers elected is required in the passage of a yeas and nays being once called for them law, an ineligible person is not on that all, though the journal is made to state account to be excluded in the count falsely a separate vote on each. We need Satterlee v. San Francisco, 22 CaL hardly say that this is a manifest viola- 314. tion of the constitution, which requires CH. VI.] OF THE ENACTMENT OF LAWS. 169 The Title of a Statute. The title of an act was formerly considered no part of it ; and although it might be looked to as a guide to the intent of the law- makers'when the body of the statute appeared to be in any respect ambiguous or doubtful,i yet it could not enlarge or restrain the provisions of the act itself,^ and the latter might therefore be good when it and the title were in conflict. The reason for this was that anciently titles were not prefixed at all, and when afterwards they came to be introduced, they were usually pre- pared by the clerk of the house in which the bill first passed, and attracted but little attention from the members. They indicated the clerk's understanding of the contents or purpose of the bills, rather than that of the house ; and they therefore were justly regarded as furnishing very little insight into the legislative inten- tion. Titles to legislative acts, however, have recently, in some States, come to possess very great importance, by reason of con- stitutional provisions, which not only require that they shall cor- rectly indicate the purpose of the law, but which absolutely make the title to control, and exclude everything from effect and oper^ ation as law which is incorporated in the body of the act, but is not within the purpose indicated by the title. These provisions are given in the note, and it will readily be perceived that they make a very great change in the law.^ 1 United States v. Palmer, 3 Wheat, may result from intermixing in one and 6!0 ; Burgett v. Burgett, 1 Ohio, 469 ; the same act such things as have no Mundt V. Sheboygan, &c. R. R.*Co., 31 proper relation to each other, every law Wis. 451; Eastman v. McAlpin, 1 Ga. shall embrace but one object, and that 157 ; Cohen v. Barrett, 5 Call, 195 ; Gar- shall be expressed in the title." The Con^ rigas V. Board of Com'rs, 39 Ind. 66 ; Mat- stitution of Missouri contain^ the follow? ter of Middletown, 82 N. Y. 196; Tripp ing provision: "No bill (except general V. GofE, 15 R. I. 299 ; Evernham v. Hulit, appropriation bills, which may embrace 45 N. J. L. 63. See Dwarris on Stat- the various subjects and accounts for and utes, 502. on account of which moneys are appro- 2 Hadden v. The Collector, 5 Wall. 107. priated, and except bills passed under the Compare United States v. Union Pacific third subdivision of section 44 of this ar- R. R. Co., 91 U. S. 72. tide) shall contain more than one subject, * The Constitutions of Minnesota, Kan- which shall be clearly expressed in its sas, Maryland, Kentucky, Nebraska, and title." The exception secondly referred Ohio provide that " no law shall embrace to is to bills for free public-school pur- more than one subject, which shall be poses. The Constitutions of Indiana, expressed in its title." Those of Michi- Oregon, and Iowa provide that " every gan, New Jersej", and Louisiana are simi- act shall embrace but one subject, and lar, substituting the word object for subject, matters properly connected therewith, The Constitutions of South Carolina, which subject shall be expressed in the Alabama, Tennessee, Arkansas, and Call- title. But if any subject shall be em- fornia contain similar provisions. The braced in an act which shall not be ex- Constitution of New Jersey provides that, pressed in the title, such act shall be " to avoid improper influences which void only as to so much thereof as shall 170 CONSTITUTIONAL LIMITATIONS. [CH. VL In considering these provisions it is important to regard, — 1. The evils designed to be remedied. The Constitution of New- Jersey refers to these as " the improper influences which may ' result from intermixing in one and the same act such things as have no proper relation to each other." In the language of the Supreme Court of Louisiana, speaking of the former practice : " The title of an act often afforded no clue to its contents. Im- portant general principles were found placed in acts private or local in their operation ; provisions concerning matters of prac- tice or judicial proceedings were sometimes included in the same statute with matters entirely foreign to them, the result of which was that on many important subjects the statute law had become almost unintelligible, as they whose duty it has been to examine or act under it can well testify. To prevent any further accu- mulation to this chaotic mass was the object of the constitutional provision under consideration." ^ The Supreme Court of Michi- gan say : " The history and purpose of this constitutional provis- ion are too well understood to require any elucidation at our hands. The practice of bringing together into one bill subjects diverse in their nature and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the State. It was scarcely more so, however, than another practice, also intended to be remedied by this provision, by which, through dexterous management, clauses not be expressed in the title." The Con- the woA subject, as used in these provi- stitution of Nevada provides that " every sions, is a question which may some time law enacted by the legislature shall em- require discussion ; but as it is evidently brace but one subject, and matters prop- employed for precisely the same purpose, erly connected therevfith, which subject it would seem that it ought not to hare, shall be briefly expressed in tlie title." Compare Hingle v. State, 24 Ind. 28, and The Constitutions of New York and People v. Lawrence, 36 Barb. 177. The Wisconsin provide that "no private or present Texas Constitution substitutes local bill which may be passed by the suhject for object, which was in the earlier legislature shall embrace more than one one, and it is held that the word is less subject, and that shall be expressed in restrictive, and that an act whose subject the title." The Constitution of Illinois is the regulation of the liquor traflSc is is similar to that of Ohio, with the addi- good though several distinct objects are tion of the saving clause found in the covered, for instance, regulation of liquor Constitution of Indiana. The provision shops, collection of revenue, &c. Fahey in the Constitution of Colorado is sim- a. State, 11 S. W. Eep. 108 (Tex.), ilar to that of Missouri. In Pennsylvania In Michigan this prpvisinn does not the provision is that "no bill except apply to city ordinances. People w. Han- general appropriation bills shall be passed rahan, 75 Mich. 611. containing more than one subject, which l Walker i'. Caldwell, 4 La. Ann. 298. shall be clearly expressed in its title." See Fletcher u. Oliver, 25 Ark. 298; Al- Const. of 1853. Whether the word object brecht v. State, 8 Tex. App. 216; B. c. 34 is to have any different construction from Am. Eep. 787. CH. VI.] OF THi! ENACTMENT OF LAWS. 171 were inserted in bills of which the titles gave no intimation, and their passage secured through legislative bodies whose members were not generally aware of their intention and effect. There was no design by this clause to embarrass legislation by making laws unnecessarily restrictive in tlieir scope and operation, and thus multiplying their number ; but the framers of the constitution meant to put an end to legislation of the vicious character referred to, which was little less than a fraud upon the public, and to re- quire that in every case the proposed measure should stand upon its own merits, and that the legislature should be fairly satisfied of its design when required to pass upon it." ^ The Court of Appeals of New York declare the object of this provision to be " that neither the members of the legislature nor the people should be misled by the title." ^ The Supreme Court of Iowa say : " The intent of this provision of the constitution was, to prevent the union, in the same act, of incongruous matters, and of objects having no connection, no relation. And with this it was designed to prevent surprise in legislation, by having matter of one nature embraced in a bill whose title expressed another." ^ And similar expressions will be found in many other reported cases.* It may 1 People V. Malianey, 13 Mich. 481. And see Board of Supervisors v. Heenan, 2 Midi. 336 ; Davis v. Bank of Fulton, 31 Ga. 69 ; St. Louis v. Tiefel, 42 Mo. 578 ; State V. Losatee, 9 Baxt. 584. The Con- stitution of Georgia provided that "no law or ordinance shall pass containing any matter different from what is expressed in the title thereof." In Mayor, &o. of Savan- nah V. State, 4 Ga. 38, Lumpkin, J., says : " I would observe that the traditionary his- tory of this clause is that it was inserted in the Constitution of 1798 at the instance of General James Jackson, and that its necessity was suggested by the Yazoo act. That memorable measure of the 17th of January, 1795, as is well known, was smuggled through the legislature under the caption of an act ' for the payment of the late State troops,' and a declara- tion in its title of the right of the State to the un.ippropriated territory thereof 'for the protection and support of the frontier settlements.' " The Yazoo act made a large grant of lands to a company of speculators. It constituted a prom- inent subject of controversy in State politics for many years. 3 Sun Mutual Insurance Co. j». Mayor, &c. of Ne,w York, 8 N. Y. 239. ' State V. County Judge of Davis Co., 2 Iowa, 280. See State v. Silver, 9 Nev. 227. * See Conner v. Mayor, &c. of New York, 5 N. Y. 293 ; Davis v. State, 7 Md. 151. The Supreme Court of Indiana also understand the provision in the Constitu- tion of that State to be designed, among other things, to assist in the codification of the laws. Indiana Central Railroad Co. V. Potts, 7 Ind. 681 ; Hingle v. State, 24 Ind. 28. See People v. Institution, &c., 71 111. 229 ; State v. Ah Sam, 15 Nev. 27 ; s. 0. 37 Am. Rep. 454 ; Harrison v. Super- visors, 51 Wis. 645 ; Albrecht v. State, 8 Tex. App. 216; s. c. 34 Am. Rep. 737; Hope V. Mayor, &c., 72 Ga. 246 ; State t>. Ranson, 73 Mo. 78 ; Bumsted v. Govern, 47 N. J. L. 368. The form of the title during any stage of the legislation before it becomes a law is immaterial. Attorney-General v. Rice, 64 Mich. 385; State w. 111. Centr. R. R. Co. 33 Fed. Rep. 730. These provisions do not apply to a revis- ion of the statutes required by the constitu- tion : State v. McDaniel, 19 S. C. 114 ; nor to an act antedating the constitution and appearing in a later compilation. Stewart V. Riopelle, 48 Mich. 177. It is enough if the title of the chapter in an authorized compilation is referred to in an amenda- 172 CONSTITUTIONAL LIMITATIONS. [OH. VL therefore be assumed as settled that the purpose of these provi- sions was : first, to prevent hodge-podge or " log-rolling " legis- lation ; second, to prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no intima- tion, and which might therefore be overlooked and carelessly and unintentionally adopted ; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire. 2. The particularity required in stating the ohject. The gen- eral purpose of these provisions is accomplished when a law has but one general object, which is fairly indicated by its title. To require every end and means necessary or convenient for the accomplishment of this general object to be provided for by a separate act relating to that alone, would not only be unreason- able, but would actually render legislation impossible. It has accordingly been held that the title of " an act to establish a police government for the city of Detroit," was not objectionable for its generality, and that all matters properly connected with the establishment and efficiency of such a government, including taxation for its support, and courts for the examination and trial of offenders, might constitutionally be included in the bill under this general title. Under any different ruling it was said, " the police government of a city could not be organized without a dis- tinct act for each specific duty to be devolved upon it, and these could not be passed until a multitude of other statutes had taken the same duties from other officers before performing them. And these several statutes, fragmentary as they must necessarily be, would often fail of the intended object, from the inherent diffi- culty in expressing the legislative will when restricted to such narrow bounds." ^ The generality of a title is therefore no objec- tory act. People v, Howard, 40 N. W. under the original title, but did not, can- Rep. 789 (Mich.) ; State w. Berka, 20 Neb. not be introduced. State v. Smith, 85 875 ; but see Feibleman «. State, 98 Ind. Minn. 257. See Tingue v. Port Chester, 516. If the title of an original act is 101 N. Y. 294. good, whether that of an amendatory ^ People v. Mahaney, 13 Mich. 481, 495. act is in itself suflScient is unimportant. See also Powell v. Jackson Com. Coun- State V. Eanson, 73 Mo. 78; State v. oil, 51 Mich. 129; Morford v. Unger, 8 Algood, 87 Tenn. 163. An amendment Iowa, 82; Whiting b. Mount Pleasant, 11 of an amended act may be upheld if Iowa, 482 ; Bright v. McCuUoch, 27 Ind. the intention is plain, though there is 223 ; Mayor, &c. of Annapolis v. State, 30 confusion in the numbering of sections. Md. 112; State v. Union, 38 N. J. 350; Fenton v. Yule, 43 N. W. Hep. 1140 Humboldt County v. Churchill Co. Com- (Neb.). Under an amendatory title noth- missioners, 6 Nev. 30; State v. Silver, 9 ing can be enacted but what amends the Nev. 227 ; State ». Sanson, 73 Mo. 78. old law. Matter which might have come CH. VI,] OF THE ENACTMENT OF LAWS. 173 tion to it, so long as it is not made a cover to legislation incongru- ous in itself, and which by no fair intendment can be considered as having a necessary or proper connection.^ The legislature must determine for itself how broad and comprehensive shall be the object of a statute, and how much particularity shall be em- ployed in the title in defining it.^ One thing, however, is very 1 Indiana Central Railroad Co. v. Potts, 7 Ind. 681 ; People v. Briggs, 50 N. Y. 553; People v. Wands, 23 Mich. 385; Washington Co. v. Franklin E. R. Co., 34 Md. 159; Benz ». Weber, 81 111. 288; Johnson v. People, 83 111. 431 ; Fuller v. People, 92 111. 182; Donnersberger v. Prendergast, 128 III. 229 ; Kurtz v. Peo- ple, 33 Mich. 279; People v. Haug, 87 N. W. Rep. 21 (Mich.) ; Montclair .-. Ramsdell, 107 U. S. 147 ; Jonesboro v. Cairo, &c. R. R. Co., 110 U. S. 192 ; Ack- ley School Dist. n. Hall, 113 U. S. 135; CarterCo. v. Sinton, 120 U. S. 517; Daub- tnan v. Smith, 47 N. J. L. 200; Clare v. People, 9 Col. 122; Ewing». Hoblitzelle, 85 Mo. 64. 2 Woodson V. Murdock, 22 Wall. 351. In State v. Bowers, 14 Ind. 195, an act came under consideration, the title to which was, " An act to amend the first section of an act entitled ' An act concern- ing licenses to vend foreign merchandise, to exhibit any caravan, menagerie, circus, rope and wire dancing puppet sliows, and legerdemain,' approved June 15, 1852, and for the encouragement of agriculture, and concerning the licensing of stock and exchange brokers." It was held that the subject of the act was licenses, and that it was not unconstitutional as containing more than one subject. But it was held also that, as the licenses which it author- ized and required were specified in the title, the act could embrace no others, and consequently a provision in the act re- quiring concerts to be licensed was void. In State v. County Judge of Davis County, 2 Iowa, 280, the act in question was en- titled " An act in relation to certain State roads therein named." It contained sixty- six sections, in which it established some forty-six roads, vacated some, and pro- vided for the re-location of others. The court sustained the act. " The object of an act may be broader or narrower, more or less extensive ; and the broader it is, the more particulars will it embrace. . . . There is undoubtedly great objection to uniting so many particulars in one act, but so long as they are of the same na- ture, . and come legitimately under one general determination or object, we can- not say that the act is unconstitutional." P. 284. Upon this subject see Indiana Central Railroad Co. u. Potts, 7 Ind. 681, where it is considered at length. Also Brewster v. Syracuse, 19 N. Y. 116 ; Hall V. Bunte, 20 Ind. 304 ; People v. McCal- lum, 1 Neb. 182 ; Mauch Chunk v. Mc- Gee, 81 Pa. St. 433. But a title and act covering four separate objects is bad. State 1). Heywood, 38 La. Ann. 689. An act entitled " An act fixing the time and mode of electing State printer, defining his duties,flxing compensation, and repeal, ing all laws coming in conflict with this act," was sustained in Walker v. Dun- ham, 17 Ind. 483. In State v. Young, 47 Ind. 150, the somewhat strict ruling was made, that provisions punishing intoxi- cation could not be embraced in an act entitled " To regulate the sale of intoxi- cating liquors." In Kurtz v. People, 33 Mich. 279, the constitutional provision is said to be " a very wise and wholesome provision, intended to prevent legislators from being entrapped into the careless passage of bills on matters foreign to the ostensible purpose of the statute as enti- tled. But it is not designed to require the body of the bill to be a mere repeti- tion of the title. Neither is it intended to prevent including in the bill such means as are reasonably adapted to secure the objects indicated by the title." And see Morton v. The Controller, 4 S. C. 430. No provision in a statute having natural connection with the subject expressed in the title and not foreign to it, is to be deemed within the constitutional inhibi- tion. Johnson v. Higgins, 3 Met. (Ky.) 566 ; McReynolds v. Smallhouse, 8 Bush, 477; Annapolis ». State, 80 Md. 112; Tut- tle V. Strout, 7 Minn. 465 ; Gunter v. Dale Co., 44 Ala. 639 ; Ex parte Upshaw, 45 Ala. 234; State v. Price, 50 Ala. 568; Commonwealth v. Drewry, 15 Grat. 1; 174 CONSTITUTIONAL LIMITATIONS. [CH. VI. plain ; that the use of the words " other purposes," which has heretofore been so common in the title to acts, with a view to cover any and every thing, whether connected with the main pur- pose indicated by the title or not, can no longer be of any avail where these provisions exist. As was said by the Supreme Court of New York in a case where these words had been made use of in the title to a local bill : " The words ' for other purposes ' must be laid out of consideration. They express nothing, and amount to nothing as a compliance with this constitutional requirement. Nothing which the act could not embrace without them can be brought in by their aid." ^ 3. What 18 embraced hy the title. The repeal of a statute on a given subject, it is held, is properly connected with the subject- matter of a new statute on the same subject ; and therefore a re- pealing section in the new statute is valid, notwithstanding the title is silent on that subject.^ So an act to incorporate a rail- road company, it has been held, may authorize counties to sub- scribe to its stock, or otherwise aid the construction of the road.^ So an act to incorporate the Firemen's Benevolent Association may lawfully include under this title provisions for levying a tax upon the income of foreign insurance companies at the place of its location, for the benefit of the corporation.* So an act to pro- People V. Hurlbut, 24 Mich. 44 ; State v. stitution under which this decision was Union, 33 N. j. 350 ;. State v. Silver, 9 made required tlie law to contain but one Nev. 227 ; Burke v. Monroe Co., 77 111. subject, and matters properly connected 610; Blood v. Mercelliott, 53 Pa. St. 391 ; therewith ; but the same decision was made Commonwealth v. Green, 58 Pa. St. 226; under the New York Constitution, which Walker v. Dunham, 17 Ind. 483. omits the words here italicized ; and it 1 Town of Fishkill v. Fishkill & may well bp doubted whether the legal Beekman Flank Road Co., 22 Barb. 634. effect of the provision is varied by the See, to the same effect, Johnson v. Spicer, addition of those words. See Guilford v. 107 N. Y. 185 ; Ryerson v. Utley, 16 Mich. Cornell, 18 Barb. 615 ; People v. Father 269 ; St. Louis v. Tiefel, 42 Mo. 578. Matthew Society, 41 Mich. 67. In a title to punish keepers of games of ' Supervisors, &c. v. People, 25 111. faro, etc., "etc." does not mean "other 181; Mahomet w. Quackenbush, 117 U. S. purposes," but " and other games." Gar- 508 ; Hope v. Mayor, &c., 72 Ga. 246 ; vin V. State, 13 Lea, 162. An act entitled Connor v. Green Pond, &e. R. R. Co., 23 "An act to repeal certain acta therein S. C. 427. So a provision for the costs named," is void. People v. Mellen, 32 on appeal from a justice is properly con- Ill. -181. An act, having for its sole ob- nected with the subject of an act entitled ject to legalize certain proceedings of the " of the election and qualification of jus- Common Council of Janesville, but en- tices of the peace, and defining their titled merely " An act to legalize and jurisdiction, powers, and duties in civil authorize the assessment of street im- cases." Robinson v. Skipworth, 23 Ind. provements and assessments," was held 311. not to express the subject, because fail- * Firemen's Association v. Lounsbury, ing to specify the locality. Durkee v. 21 111. 511. Power to tax for school pur- Janesville, 26 Wis. 697. poses may be given under an act " to ' Gabbert u. Railroad Co., 11 Ind. 365 ; regulate public instruction." Smith o. Timm f. Harrison, 109 III. 593. The con- Bohler, 72 Ga. 546. CH. VI.] OF THE ENACTMENT OF LAWS. 175 vide a homestead for widows and children was held valid, though what it provided for was the pecuniary means sufficient to pur- chase a homestead.^ So an act " to regulate proceedings in the county court " was held to properly embrace a provision giving an appeal to the District Court, and regulating the proceedings therein on the appeal.^ So an act entitled "An act for the more uniform doing of township business" may properly provide for the organization of townships.^ So it is lield that the changing of the boundaries of existing counties is a matter properly con- nected with the subject of forming new counties out of those ex- isting.* So a provision for the organization and sitting of courts in new counties is properly connected with the subject of the for- mation of such counties, and may be included in " an act to au- thorize the formation of new counties, and to change county boundaries." ^ Many other cases are referred to in the note, which will further illustrate the views of the courts upon this subject. There has been a general disposition to construe the constitutional provision liberally, rather than to embarrass legis- lation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted.* ^ Succession of Lanzetti, 9 La. Ann. 329. 2 Murphey v. Menard, 11 Tex. 673. See State v. Ah Sam, 15 Nev. 27 ; b. c. 37 Am. Rep. 454. 3 Clinton v. Draper, 14 Ind. 295. An act to consolidate the acts as to a city and to define the duty of the mayor will not allow conferring judicial power on him. Brown v. State, 79 Ga. 324. * Haggard v. Hawkins, 14 Ind. 299. And see Dnncombe v. Prindle, 12 Iowa, 1 ; State v. Hoagland, 16 Atl. Rep. 166 (N. J.). 6 Brandon v. State, 16 Ind. 197. In this case, and also in State v. Bowers, 14 Ind. 195, it was held that if the title to an original act is sufficient to embrace the matters covered by the provisions of an act amendatory thereof, it is unneces- sary to inquire whether the title of an amendatory act would, of itself, be suffi- cient. And see Morford v. linger, 8 Iowa, 82. 8 Green v. Mayor, &c., R. M. Charlt. 868; Martin v. Broach, 6 Ga. 21; Pro- tho V. Orr, 12 Ga. 36 ; Wheeler v. State, 23 Ga. 9i Hill v. Commissioners, 22 Ga. 203; Jones v. Columbus, 25 Ga. 610; Denham v. Holeman, 26 Ga. 182; Allen V. Tison, 50 Ga. 374; Ex parte Conner, 51 Ga. 571 ; Brieswick v. Mayor, &c. of Brunswick, 51 Ga. 639; Howell ti. State, 71 Ga. 224 ; People v. MeCann, 16 N. Y. 58; Williams v. People, 24 N. Y. 405 ; People v. Allen, 42 N. Y. 404; Huber v. People, 49 N. Y. 132 ; Peo- ple V. Rochester, 50 N. Y. 525 ; Wenzler V. People, 58 N. Y. 516 ; People o. Dud- ley, 58 N. Y. 323; People v. Quigg, 69 N. Y. 83 ; Harris v. People, 69 N. Y. 599 ; In re Flatbush, 60 N. Y. 898 ; People ». Willsea, 60 N. Y. 507 ; Matter of Met. Gas Light Co., 85 N. Y. 526; People v. Whitlock, 92 N. Y. 191 ; Ensign v. Barse, 107 N. Y. 329; Railroad Co. v. White- neck, 8 Ind. 217; Wilkins v. Miller, 9 Ind. 100; Foley v. State, 9 Ind. 363; " Gillespie v. State, 9 Ind. 380 ; Mewherter V. Price, 11 Ind. 199 ; Reed v. State, 12 Ind. 641; Henry v. Henry, 13 Ind. 250; Igoe V. State, 14 Ind. 239 ; Sturgeon v. Hitchens, 22 Ind. 107 ; Lauer v. State, 22 Ind. 461; Central Plank Road Co. v. Hannaman, 22 Ind. 484 ; Garrigus v. Board of Commissioners, 39 Ind. 66 ; McCaslin c. State, 44 Ind. 151 ; Williams v. State, 48 Ind. 306 ; Jackson: v. Reeves, 53 Ind. 231; Railroad Co. v. Gregory, 15 111. 20; Firemen's' Association v. Lounsbury, 21 176 CONSTITUTIONAL LIMITATIONS. [oh. VL 4. The effect if the title embrace more than one object. Perhaps in those States where this constitatioiial provision is limited in III. 611; Ottawa e. People, 48 111. 233; Prescott Ti. City of Chicago, 60 111. 121 ; People ». Brislin, 80 Ul. 423 ; McAunich V. Mississippi, &c. R. R. Co., 20 Iowa, 338 ; State v. Squires, 26 Iowa, 840 ; Chiles V. Drake, 2 Met. (Ky.) 146; Phillips «. Bridge Co., 2 Met. (Ky.) 219; Louisville, &c. Co. V. Ballard, 2 Met. (Ky.) 177; Phillips V. Covington, &c. Co., 2 Met. (Ky.)219; Chiles b. Monroe, 4 Met. (Ky.) 72; Hind o. 'Rice, 10 Bush, 528 ; Cannon V. Hemphill, 7 Tex. 184 ; Battle v. How- ard, 13 Tex. 345 ; Robinson v. State, 15 Tex. 311 ; Antonio v. Gould, 34 Tex. 49 ; Ex parte Hogg, 36 Tex. 14 ; State v. Sha- dle, 41 Tex. 404 ; State v. McCracken, 42 Tex. 383 ; Laefon r. Dufoe, 9 La. Ann. 329 ; State v. Hafrison, 11 La. Ann. 722 ; Bossier ». Steele, 13 La. Ann. 433 ; Wil- liams V. Payson, 14 La. Ann. 7 ; Wisners V. Monroe, 25 La. Ann. 698 ; Whited v. ILewis, 25 La. Ann. 568; State v. Lafayette County Court, 41 Mo. 221 ; State v. Mil- ler, 45 Mo. 495 ; State v. Gut, 13 Minn. 341; Stuart v. Kinsella, 14 Minn. 524; Mills V. Charleton, 29 Wis. 400 ; Evans v. Sliarpe, 29 Wis. 564; Single v. Super- visors of Marathon, 38 Wis. 363 ; Harri- son V. Supervisors, 51 Wis. 645; People v. McCaHum, 1 Neb. 182 ; Smalls v. White, 4 Neb. 353 ; Cutlip v. The Sheriff, 3 W. Va. 588; Shields v. Bennett, 8 W. Va. 74 ; Tuscaloosa Bridge Co. v. Olmstead, 41 Ala. 9; Weaver v. Lapsely, 43 Ala. 224 ; Ex parte Upshaw, 45 Ala. 234 ; Lockhart v. Troy, 48 Ala. 579; Walker V. State, 49 Ala. 329 ; Simpson a. Bailey, 3 Oreg. 515; Pope v. Phifer, 3 Heisk. 682 ; Cannon \\ Mathes, 8 Heisk. 504 ; State V. Newark, 34 N. J. 264 ; Gifford ». R. R. Co., 10 N. J. Eq. 171 ; Keller ij. State, 11 Md. 525 ; Parkinson v. State, 14 Md. 184 i Byerson v. Utley, 16 Mich. 269; People v. Denahy, 20 Mich. 349; People V. Hnrlbut, 24 Mich. 44 ; Kurtz v. People, 33 Mich. 279 ; Hathaway v. New Baltimore, 48 Mich. 251 ; Attorney-Gen- eral V. Joy, 55 Mich. 94; Dorsey's Ap- peal, 72 Pa. St. 192 ; Allegheny County Home's Case, 77 Pa. St. 77; Morton ■». Comptroller-General, 4 S. C. 430; State v. Gurney, 4 S. C. 520; Norman w. Curry, 27 Ark. 440 ; Division "of Howard County, 15 Kan. 194; Simpson v. Bailey, 8 Oreg. 515; Ex parte Wells, 21 FIa."280j Read V. Plattsmouth, 107 U. S. 668; Otoe Co. V. Baldwin, 111 U. S. 1. In Davis o. Woolnough, 9 Iowa, 104, an act entitled " An act for revising and consolidating the laws incorporating the city of Dubuque, and to establish a city court therein," was held to express by its title but one object, which was, the revis- ing and consolidating the laws incorpo- rating tlie city ; and the city court, not being an unusual tribunal in such a mu- nicipality, might be provided for by the act, whether mentioned in the title or not. " An act to enable the supervisors of the city and county of New York to raise money by tax," provided for raising money to pay judgments then existing, and also any thereafter to be recovered ; and it also contained the further provi- sion, that whenever the controller of the city should have reason to believe that any judgment then of record or there- after obtained had been obtained by col- lusion, or was founded in fraud, he should take the proper and necessary means to open and reverse the same, &c. This provision was held constitutional, as prop- erly connected with the subject indicated by the title, and necessary to confine the payments of the tax to the objects for which the moneys were intended to be raised. Sharp v. Mayor, &e. of New York, 31 Barb. 572. In O'Leary v. Cook Co., 28 III. 584, it was held that a clause in an act incorporating a college, prohibiting the sale of ardent spirits within a dis- tance of four miles, was so germane to the primary object of the charter as to he properly included within it. By the first section of " an act for the relief of tlie creditors of the Loekport and Ni- agara Palls Railroad Company," it was made the duty of the president of the corporation, or one of the directors to be appointed by the president, to advertise and sell the real and personal estate, in- cluding the francliise of the company, at public auction, to the highest bidder. It was then declared that the sale should he absolute, and that it should vest in the purchaser or purchasers of the property, real or personal, of the company, all the franchise, rights, and privileges of the corporation, as fully and as absolutely as the same were then possessed by the CH. VI.] OF THE ENACTMENT OF LAWS. 177 its operation to private and local bills, it might be held that an act was not void for embracing two or more objects which were indicated by its title, provided one of them only was of a private and local nature. It has been held in New York that a local bill was not void because embracing general provisions also ; ^ and if they may constitutionally be embraced in the act, it is presumed they may also be constitutionally embraced in the title. But if the title to the act actually indicates, and the act itself actually embraces, two distinct objects, when the constitution says it shall embrace but one, the whole act must be treated as void, from the manifest impossibility in the court choosing between the two, and holding the act valid as to the one and void as to the other.^ 5. The effect where the act is broader than the title. But if the act is broader than the title, it may happen that one part of it can stand because indicated by the title, while as to the object not indicated by the title it must fail. Some of the State constitur tions, it will be perceived, have declared that this shall be the rule ; but the declaration was unnecessary ; as the general rule, that so much of the act as is not in conflict with the constitution must be sustained, would have required the same declaration from the courts. If, by striking from the act all that relates to the object not indicated by the title, that which is left is complete in itself, sensible, capable of being executed, and wholly independent company. The money arising from the An act for the relief of the village of sale, after paying costs, was to be applied, Clinton covers curative provisions rel- first, to the payment of a certain judg- ative to the action of commissioners ment, and then to other liens according to for village water-supply. Board Water priority ; and the surplus, if any, was to Commissioners v. Dwiglit, 101 N. Y. 9. be divided ratably among the other cred- An act to regulate foreclosure of real es- itors, and then, if there should be an over- tate covers provisions for sales on exe- plus, it was to be divided ratably among cution as well as mortgage. Gillitt v. the then stockholders. By the second McCarthy, 34 Minn. 318. One to pro- section of the act, it was declared that {jiblt sale of liquor covers civil damage the purchaser or purchasers should have provisions. Durein u. Fontious, 34 Kan. the right to sell and distribute stock to the 363. And see Mills v. Charleton, 29 Wis. full amount which was authorized by the 400, — a very liberal case; Erlinger v. act of incorporation, and the several Boneau, 51 111. 94; State v. Newark, 34 N. amendments thereto ; and to appoint an J. 236 ; Smith v. Commonwealth, 8 Bush, election, choose directors, and organize a 108; State v. St. Louis Cathedral, 23 La. corporation anew, with the same powers Ann. 720 ; Simpson v. Bailey, 3 Oreg. as the existing company. There was 515 ; Neifing v. Fontiac, 56 111. 172. then a proviso, that nothing in the act i People v. McCann, 16 N. Y. 58. An should impair or affect the subscriptions act as to paving Eighth Avenue cannot for new stock, or the obligations or liabil- provide for changing the grade of inter- ities of the company, which had been secting streets. In re Blodgett, 89 N. Y. made or incurred in the extension of the 892. the road from Lockport to Rochester, &c. " Antonio v. Gould, 34 Tex. 49 ; State The whole act was held to be constitu-' v. McCracken, 42 Tex. 383. All the tionaL Mosier v. Hilton, 15 Barb. 657. cases recognize this doctrine. 12 178 COKSTITDTIOUAL LIMITATIONS. [OH. VL of that wliich is rejected, it must be sustained as constitutional. The principal questions in each case will therefore be, whether the act is in truth broader than the title ; and if so, then whether the other objects in the act are so intimately connected with the one indicated by the title that the portion of the act relating to them cannot be rejected, and leave a complete and sensible enact- ment which is capable of being executed.^ As the legislature may make the title to an act as restrictive as they please, it is obvious that they may sometimes so frame it as to preclude many matters being included in the act which might with entire propriety have been embraced in one enactment with the matters indicated by the title, but which must now be excluded because the title has been made unnecessarily restrictive. The courts cannot enlarge the scope of the title ; they are vested with no dispensing power ; the constitution has made the title the conclusive index to the legislative intent as to what shall have operation ; it is no answer to say that the title might have been made more comprehensive, if in fact the legislature have not seen fit to make it so. Thus, " an act concerning promissory notes and bills of exchange" provided that all promissory notes, bills of exchange, or other instruments in writing, for the payment of money, or for the delivery of specific articles, or to convey prop* erty, or to perform any other stipulation therein mentioned, should be negotiable, and assignees of the same might sue thereon in their own names. It was held that this act was void, as to all the instruments mentioned therein except promissory notes and 1 People V. Briggg, 50 N. Y. 553. See Welch ». Post, 99 III. 471 ; Donnersber- Van Riper v. North Plainfield, 43 N. J. ger v. Prendergast, 128 111. 229 ; Davis v. 349; Central, &c. B. B. Co. v. People, State, 7 Md. 161; Stiefel v. Maryland 6 Col. 39; Foley v. State, 9 Ind. 363; Inst., 61 Md. 144; State v. Bankers', &c. Kuhns V. Kramis, 20 Ind. 490 ; Grubbg v. Assn., 23 Kan. 499 ; Bader v. Union, 39 State, 24 Ind. 295; State v. Young, 47 N. J. 509; Eyernham v. Hulit, 46 N. J. L. Ind. 160 ; Bobinson v. Bank of Darien, 18 63 ; Miss., &c. Boom Co. v. Prince, 34 Ga. 65 ; Williams v. Fayson, 14 La. Ann. Minn. 79 ; State v. Palmes, 23 Fla. 620 ; 7; Weaver v. Lapeley, 43 Ala. 224; Jones v. Thompson, 12 Bush, 394. In Walker v. State, 49 Ala. 329 ; Boyd v. Tennessee it is held that if an act cout State, 63 Ala. 601 ; Ex parte Moore, 62 tains more than one subject, it is void. Ala. 471; State v. Miller, 45 Mo. 495; State v. McCann, 4 Lea, 1. "None of Wisners v. Monroe, 25 La. Ann. 698 ; the provisions of a statute should be re^ Dorsey's Appeal, 72 Pa. St. 192 ; Alle- garded as unconstitutional where they all gheny County Home's Case, 77 Pa. relate, directly or indirectly, to the same St. 77 ; Teuumseh v. Phillips, 6 Neb. 305 ; subject, have a natural connection, and State 0. Lancaster Co., 17 Neb. 86; Mat- are not foreign to the subject expressed ter of Van Antwerp, 56 N. Y. 261 ; People in the title." Phillips v. Bridge Co., 2 V. O'Brien, 38 N. Y. 193 ; Matter of Met. (Ky.) 219, approved. Smith v. Corn- Metropolitan Gas. Co., 85 N. Y. 626; monwealth, 8 Bush, 112. See Ex parte Lockport V. Gaylord, 61 111. 276 ; Midj- Upshaw, 46 Ala. 234 ; Stewart v. Father dleport V. Insurance Co., 82 111. 662; Matthew Society, 41 Mich. 67. CH. VI.] OF THE ENACTMENT OF LAWS. 179 bills of exchange ; ^ though it is obvious that it would have been easy to frame a title to the act which would have embraced them all, and which would have been unobjectionable. It has also been held that an act for the preservation of the Muskegon River Improvement could not lawfully provide for the levy and collec- tion of tolls for the payment of the expense of ednstructmg the improvement, as the operation of the act was carefully limited by its title, to the future.^ So also it has been held that " an act to limit the numbers of grand jurors, and to point out the mode of their selection, defining their jurisdiction, and repealing all laws inconsistent therewith," could not constitutionally contain pro- visions which should authorize a defendant in a criminal case, on a trial for any offence, to be found guilty of any lesser offence necessarily included therein.^ These cases must sufi&ce upon this point ; though the cases before referred to will furnish many similar illustrations. In all we have said upon this subject we have assumed the constitutional provision to be mandatory. Such has been the view of the courts almost without exception. In California, how- ever, a different view has been taken, the court saying ^ " We regard this section of the constitution as merely directory ; and, if we were inclined to a different opinion, would be careful how we lent ourselves to a construction which must in effect obliterate almost every law from the statute-book, unhinge the business and destroy the labor of the last three years. The first legislature that met under the constitution seems to have considered this sec- tion as directory ; and almost every act of that and the subsequent sessions would be obnoxious to this objection. The contempo- 1 Mewherter v. Price, 11 Ind. 199. See Lafayette Co. Court, 41 Mo. 39 ; People also State v. Toung, 47 Ind. 150 ; Jones v. Denahy, 20 Mieb. 849. V. Thompson, 12 Bush, 394 ; Bushing v. Prohibitory enactments are not covered Sebree, 12 Bush, 198 ; State ». Kinsella, by, a title to " regulate " liquor selling. 14 Minn. 524 ; Grover v. Trustees Ocean Miller v. Jones, 80 Ala. 89 j People a. Grove, 45 N. J. L. 399. Gadway, 61 Mich. 285 ; People v. Hauck, 2 Eyerson «. Utley, 16 Mich. 269. See 38 N. W. Kep. 269 (Mich.) ; Cantril v. further Weaver v. Lapsley, 43 Ala. 224 ; Sainer, 59 Iowa. 26, See State «. Circuit Tuscaloosa Bridge Co. v. Olmstead, 41 Court, 15 Atl. Rep. 273 (N. J.). Ala. 9; Stuart ». Kinsella, 14 Minn. 524; For further illustration of provisions Rogers v. Manuf. Imp. Co., 109 Pa. St. held bad because not within the title, 109. la Cutlip V. Sheriff, 3 W. Va. 588, see Ragio v. State, 86 Tenn. 272 ; In te it was held that if an act embraces two Patul, 94 N Y. 497 ; Anderson v. Hill, 54 objects, only one of which is specified io Mich. 477; Northwestern Mfg. Co. v. the title, the whole is void ; but this is Wayne Ciro. Judge, 58 Mich. 381 ; Se- Opposed to the authorities generally. wickley v. Sholes, 118 Pa. St. 165 ; Jersey 8 Foley V. State, 9 Ind. 363 ; Gillespie City v. Elraendorf, 47 N. J. L. 283 ; Sa- t). State, 9 Ind. 380. See also Indiana Vannah, F. & W. Ry. C6. v. Geiger, 22 Cent. Railroad Co. v. Potts, 7 Ind. 681 ; Fla. 669. State V. Squires, 26 Iowa, 340 ; State v. 180 CONSTITUTIONAL LIMITATIONS. [CH. VI. raueous exposition of the first legislature, adopted or acquiesced in by every subsequent legislature, and tacitly assented to by the courts, taken in connection with the fact that rights have grown up under it, so that it has- become a rule of property, must govern our decision." ^ Similar views have also been expressed in the State of Ohio.2 These cases, and especially what is said by the California court, bring forcibly before our minds a fact, which cannot be kept out of view in considering this subject, and which has a very important bearing upon the precise point which these decisions cover. The fact is this : that whatever constitutional provision can be looked upon as directory merely is very likely to be treated by the legislature as if it was devoid even of moral obligation, and to be therefore habitually disregarded. To say Ijhat a provision is directory, seems, with many persons, to be equivalent to saying that it is not law at all. That this ought not to be so must be conceded ; that it is so we have abundant reason and good authority for saying. If therefore, a constitutional pro- vision is to be enforced at all, it must be treated as mandatory. And if the legislature habitually disregard it, it seems to us that there is all the more urgent necessity that the courts should enforce it. And it also seems to us that there are few evils which can be inflicted by a strict adherence to the law, so great as that which is done by the habitual disregard, by any department of the government, of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed. Upon this subject we need only refer here to what we have said concerning it in another place.3 Amendatory Statutes. It has also been deemed important, in some of the States, to provide by their constitutions, that " no act shall ever be revised or amended by mere reference to its title ; but the act revised or section amended shall be set forth and published at full length." * 1 Washington v. Page, 4 Cal. 388. See New Jersey, Ohio, Michigan, Louisiana, Fierpont v. Croucli, 10 Cal. 316; Matter Wisconsin, Missouri, and Maryland there of Boston Mining, &o. Co., 51 Cal. 624 ; are provisions of similar import. In Ten- Weill V. Kenfield, 54 Cal. 111. nessee the provision is : " All acts which * Miller v. State, 3 Ohio St. 475; Pim revive, repeal, or amend former laws, ». Nicholson, 6 Ohio St. 177 ; State v. shall recite, in their caption or otherwise, Covington, 29 Ohio St. 102. the title or substance of the law repealed, » Ante, p. 84 et seg. See State v. Tufly, revived, or amended." Art. 1, § 17. See 19 Nev. 391. State v. Gaines, 1 Lea, 734; McGhee v. * This is the provision as it is found in State, 2 Lea, 622. The provision in Ne- the Constitutions of Indiana, Nevada, Ore- braslca (Const, of 1875) is peculiar. " No gon, Texas, and Virginia, In Kansas, law shall be amended unless the new CH. VI.] OF THE ENACTMENT OF LAWS. 181 Upon this provision an important query arises. Does it mean that the act or section revised or amended shall be sat forth and published at full length as it stood before, or does it mean only that it shall be set forth and published at full length as amended or revised ? Upon this question perhaps a consideration of the purpose of the provision may throw some light. " The mischief designed to be remedied was the enactment of amendatory stat- utes in terms so blind that legislators themselves were some- times deceived in regard to their effects, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to, but not published, was well calculated to mis- lead the careless as to its effect, and was, perhaps, sometimes drawn in that form for the express purpose. Endless confusion was thus introduced into the law, and the constitution wisely pro- hibited such legislation." ^ If this is a correct view of the pur- pose of the provision, it does not seem to be at all important to its accomplishment that the old law should be republished, if the law as amended is given in full, with such reference to the old law as will show for what the new law is substituted. Neverthe- less, it has been decided in Louisiana that the constitution requires the old law to be set forth and published j^ and the courts of act contains the section or sections so legislature may repeal a definite portion amended, and the section or sections so of a section without the re-enactment of amended shall be repealed." Art. 3, § 11. the section with such portion omitted. Under a like provision that any section Chambers v. State, 25 Tex. 307. But amended is thereby repealed, it is held gucsre of this. Any portion of a section in Alabama that an amendment to an amended which is not contained in the amended statute is valid. State o. War- amendatory section as set forth and pub- ford, 84 Ala. 15. So where the amend- lished is repealed. State v. Ingersoll, 17 ment impliedly repealed the original act. Wis. 631. Further on this subject see an amendment to the amended act was Blakemore v. Dolan, 50 Ind. 194 ; People held valid, as the mistake in referring to a r. Wright, 70 111. 388 ; Jones v. Davis, 6 repealed statute should not defeat the Neb. 83; Sovereign a. State, 7 Neb. 409; intention of the legislature. Com. v. Gordon v. People, 44 Mich. 485 ; State v. Kenneson, 148 Mass. 418. Under pro- Gerger, 65 Mo. 306; Van Riper v. Par- visions forbidding enactments by refer- sons, 40 N. J. 123; s.c. 29 Am. Rep. 210; ence a law complete in itself may provide Fleishner v. Chadwick, 50reg. 152 ; State for carrying out its purposes by reference v. Cain, 8 W. Va. 720 ; State v. Hender- to procedure established by other acts, son, 32 La. Ann. 779; Colwell v. Cham- Campbell V. Board, &c., 47 N. J. L. 347 ; berlin, 43 N. J. 387. De Camp v. Hibernia R. R. Co., Id. 43. i People v. Mahaney, 13 Mich. 497. But the act must be complete in all es- See Mok v. Detroit, &c. Association, 30 sentials. Christie v. Bayonne, 48 N. J. L. Mich. 511 ; Bush v. Indianapolis, 22 N. E. 407; Donohugh v. Roberts, 15 Phila. Rep. 422 (Ind.). 144. 2 Walker w. Caldwell, 4 La. Ann. 297 ; In Texas it appears to be held that the Heirs of Duverge v. Salter, 5 La. Ann. 182 CONSTITUTIONAL LIMITATIONS. [CH. VL Indiana, assuming the provision in their own constitution to be taken irom, that of Louisiana after the decisions referred to had been made, at one time adopted and followed them as precedents.^ It is believed, however, that the general understanding of the provision in question is different, and that it is fully complied with in letter and spirit, if the act or section revised or amended is set forth and published as revised or amended, and that anything more only tends to render the statute unnecessarily cumbrous.^ It should be observed that statutes which amend others by impli- cation are not within this provision ; and it is not essential that they even refer to the acts or sections which by implication they amend.* But repeals by implication are not favored ; and the repugnancy between two statutes should be very clear to warrant a court in holding that the later in time repeals the other, when it does not in terms purport to do ao.* This rule has peculiar 94. Contra, Shields r. Bennett, 8 W. Va. '74. 1 Langdon v. Applegate, 5 Ind. 327; Rogers v. State, 6 Ind. 31. These cases were overruled in Greencastle, &c. Co. v. State, 28 Ind. 882. * See Tuscaloosa Bridge Co. v. 01m- ■tead, 41 Ala. 9 ; People v. Pritchard, 21 Mich. 236 ; People i^. McCallum, 1 Neb. 182; State t). Draper, 47 Mo. 29; Boon- Tille V. Trigg, 46 Mo. 288 ; State i. Pow- der Mfg. Co., 50 N. J. L. 75. A whole act need be set out on)y when all its sections are amended. State v. Thruston, 92 Mo. 325. Under such a constitutional provi- sion where a statute simply repeals others it is not necessary to set them out. Fal- coner V. Robinson, 46 Ala. 340. Com- pare Bird V. Wasco County, 3 Oreg. 282. ' Spencer v. State, 5 Ind. 41 ; Bran- ham V. Lange, 16 Ind. 497; People v. Mahaney, 18 Mich. 481 ; Lehman v. Mc- Bride, 15 Ohio St. 573 ; Shields v. Ben- nett, 8 W. Va. 74 ; Baum v. Raphael, 57 Cal. 361 ; Home Ins. Co. !>. Taking- Dis- trict, 4 Lea, 644 ; Swartwout v. Railroad Co., 24 Mich. 389 ; Scales v. State, 47 Ark, 476 ; Denver Circle R. Co- v. Hestor, 10 Col. 403; State v. Cross, 88 Kan. 696 ; Evernham v. Ku\% 45. N, J. L, 53 ; Sher- idan V. Salem, 14 Oreg. 328. Compare State V. Wright, id. 365. * See cases citeS in last note; also Towle V. Marrett, 3 Me. 22 ; 8. c. 14 Am. Dec. 206 ; Nay lor v. Field, 29 N. J. 287; State ». Berry, 12 Iowa, 58 ; Attorney- General V. Browa, 1 Wis. 518 ; Dodge v. Gridley, 10 Ohio, 173 ; Him v. State, 1 Ohio St. 20 ; Saul v. Creditors, 5 Mart.. N. B. 569 ; s. c. 16 Am. Dec. 212 ; New Orleans v. Southern Bank, 15 La, Ann. 89; Blain v. Bailey, 25 Ind, 165; Water Works Co. V. Burkhart, 41 Ind. 364; Swann v. Buck, 40 Miss. 268 ; Davis v. State, 7 Md. 151 ; State w. The Treasurer, 41 Mo. 16 ; Somerset & Stoystown Road, 74 Pit St. 61 ; Kilgore v. Commonwealth, 94 Pa. St. 495 ; McCool v. Smith, 1 Black, 459; State v. Cain, 8 W. Va. 720; Fleis- chner v. Chadwick, 5 Ore^. 152 ; Coving- ton V. East St, Louis, 78 111. 548 ; East St. Louis V. Maxwell, 99 111. 439; In re Ryan, 45 Mich. 173; Connors v. Carp River Iron Co., 54 Mich. 168; Parker o. Hubbard, 64 Ala. 203 ; Iverson v. Stat^ 52 Ala. 170; Gohen v. Texas Pacific R. R. Co , 2 Woods, 346 ; State v. Commis- sioners, 37 N, J. 240; Attorney-General V, Railroad Companies, 35 Wis. 425; Rounds,!;. Waymart, 81 Pa. St. 895; Greeley p. Jacksonville, 17 Fla. 174; State V. Smith, 44 Tex. 443 ; Henderson's Tobacco, 11 Wall. 652; Cape Girardeau Co- Ct. V. Hill, 118 U. S. 68. If the two are repugnant in part, the earlier is pro tanto repealed. Hearn v. Brogan, 64 Miss. 334 ; Jeflersonville, &c. R. R. Co. u. Dunlap, 112 Ind. 93. A law which merely re-enacts a former one does not repeal an interme- diate act qualifying such former act. JThe new is qualified like the old. Gaston v. Merriam, 33 Minn. 271, It is a familiar rule, however, that when anew statute is evidently intended to cover the whole CH. VI.] OF THE ENACTMENT OP LAWS. 183 force in the case of laws of special and local application, which are never to be deemed repealed by general legislation except upon the most unequivocal manifestation of intent to that effect.^ It was a parliamentary rule that a statute should not be re- pealed at the same session of its enactment, unless a clause per- mitting it was inserted in the statute itself ; 2 but this rule did not apply to repeals by implication,8 and it is possibly "not recog- nized in this country at all, except where it is incorporated in the State constitution.* Signing of Bills. "When a bill has passed the two houses, it is engrossed for the signatures of the presiding officers. This is a constitutional re- quirement in most of the States, and therefore cannot be dis- pensed with ; ^ though, in the absence of any such requirement. subject to which it relates, it will by im- plication repeal all prior statutes on that subject. See United States v. Barr, 4 Sawyer, 254; United States ». Claflin, 97 U. S. 646 ; Eed Rock v. Henry, 106 U. S. 596; DowdellB. State, 58 Ind. 333; State p. Rogers, 10 N&v. 319 ; Tafoya v. Garcia, 1 New Mex. 480 ; Campbell's Case, 1 Dak. 17; Andrews ». People, 75 111.605; Clay Co. V. Chickasaw Co., 64 Miss. 5S4 ; Lyddy v. Long Island City, 104 N. Y. 218 ; Stingle ». Nevel, 9 Oreg. 62 ; State V. Studt, 31 Ean. 245. But a local option law merely suspends, does not repeal a former liquor law, and after its adoption offences against the latter while in force may be prosecuted. Winterton v. State, 65 Miss. 238. A statute cannot be repealed by non-user. Homer v. Com., 106 Pa. St. 221 ; Pearson v. Int. Distill. Co., 72 Iowa, 348. 1 Cass V. Dillon, 2 Ohio St. 607 ; Fos- dick V. Perrysburg, 14 Ohio St. 472 ; Peo- ple V. Quigg, 59 N. Y. 83; McEenna v. Edmundstone, 91 N. Y. 231 ; Clark v. Davenport, 14 Iowa, 404 ; Qleson v. Green Bay, &c. R. R. Co., 36 Wis. 383 ; Coving- ton V. Bast St. Louis, 78 III. 548 ; Chesa- peake, &c. Co. V. Hoard, 16 W. Va. 270 ; Bounds V. "Waymart, 81 Pa. St. 395; Ex parte Schmidt, 24 S. C. 368 ; New Bruns- wick w. Williamson, 44 N. J. L. 165; Mc- Gruder v. State, 10 S. E. Rep. 281 (Ga.). 2 Dwarris on Statutes, Vol. I. p. 269 ; Sedgw. on Stat, and Const. Law, 122; Smith on Stat, and Const. Construction, 908. * Ibid. And see Spencer v. State, 5 Ind. 41. * Spencer v. State, 5 Ind. 41 ; Attor- ney-General V. Brown, 1 Wis. 513 ; Smith on Stat, and Const. Construction, 908; Mobile & Ohio Railroad Co. v. State, 29 Ala. 573 ; Strauss v. Heiss, 48 Md. 292. The later of two acts passed at the same session controls when they are incon. sistent. Thomas v. Collins, 58 Mich. 64 ; Watson V. Kent, 78 Ala. 602. But the fact of later publication when action is taken at the same time will not work a repeal. In re Hall, 38 Kan. 670. Where acts passed on different days are approved on the same day, the presumption is that the one passed last was signed last. State v. Davis, 16 Atl. Rep. 529 (Md.). 5 Moody V. State, 48 Ala. 115:, s. c. 17 Am. Rep. 28; State v. Mead, 71 Mo. 266. Burritt v. Com'rs, 120 111. 322; State V. Kiesewetter, 45 Ohio St. 254; Hunt V. State, 22 Tex. App. 396. Signa- ture by presiding ofBcers and assistant secretary is enough. State v. Glenn, 18 Nev. 34. But if the journal shows the passage of an act and the governor signs it, absence of signature of the president of the Senate will not invalidate it. Tay- lor V. Wilson, 17 Neb. 88. After an act has been passed over a veto, it need not be again certified. State v. Denny, 21 N. E. Rep. 274 (Ind.). The bill as signed must be the same as it passed the two houses. People v. Piatt, 2 S. C. n. 8. 150; Legg V. Annapolis, 42 Md. 203 ; Brady u. West, 50 Miss. 68. But a clerical error that would not mislead is to be overlooked. People V. Supervisor of Onondaga, 16 Mich. 254. Compare Smith v. Hoyt, 14 184 CONSTITUTIONAL LIMITATIONS. [oh. VL it would seem not to be essential.^ And if, by the constitution of the State, the governor is a component part of the legislature, the bill is then presented to him for his approval. Approval of Laws. The qualified veto power of the governor is regulated by the constitutions of those States which allow it, and little need be said here beyond referring to the constitutional provisions for information concerning them. It has been held that if the gov- ernor, by statute, was entitled to one day, previous to the ad- journment of the legislature, for the examination and approval of laws, this is to be understood as a full day of twenty-four hours, before the hour of the final adjournment.^ It has also been held that, in the approval of laws, the governor is a com- ponent part of the legislature, and that unless the constitution allows further time for the purpose, he must exercise his power of approval before the two houses adjourn, or his act will be void.^ Wis. 252, where the error was in publica- tion. And so should accidental but im- material changes in the transmission of the bill from one house to the other. Larrison v. Bailroad Co., 77 111. 11 ; Wal- nut V. Wade, 103 U. S. 683. See Wen- ner v. Thornton, 98 111. 156. When a mistake in enrolment made an approval void, signatures and approval on a cor- rect roll after the adjournment were held to make the act valid. Dow v. Beidel- man, 49 Ark. 325. In Maryland the gov- ernor may refuse to consider any bill sent him not authenticated by the Great Seal. Hamilton v. State, 61 Md. 14. 1 Speer v. Plank Road Co., 22 Pa. St. 876. 2 Hyde v. White, 24 Tex. 137. The five days allowed in New Hampshire for the governor to return bills which have not received his assent, include days on which the legislature is not in session, if it has not finally adjourned. Opinions of Judges, 45 N. H. 607. But the day of presenting the bill to the governor should be excluded. Opinions of Judges, 45 N. H. 607 ; Iron Mountain Co. v. Haight, 39 Cal. 540 ; In re- Senate Resolution, 21 Pac. Rep. 475 (Col.). And if the last day falls on Sunday he may return the bill on Monday, id. As to the power of the governor, derived from long usage, to approve and sign bills after the adjourn- ment of the legislature, see Solomon t'. Cartersville, 41 Ga. 157. Neither house can, without the consent of the other, recall a bill after its trans- mission to the governor. People v. Devlin, 33 N. Y. 269. In Colorado the legislature may request the return of a bill in the governor's hands, but he may respond or not as he likes. If he sends back the billj it may be reconsidered and amended. Be Recalling Bills, 9 Col. 630. But in Virginia no such recall is author- ized. Wolfe V. McCauU, 76 Va. 876. The delivery of a bill passed by the two houses to the secretary of the com- monwealth according to custom, is not a presentation to the governor for his ap- proval, within the meaning of the consti- tutional clause which limits him to a certain number of days after the presen- tation of the bill to veto it. Opinions of the Justices, 99 Mass. 636. s Fowler v. Peirce, 2 Cal. 165. The court also held in this case that, notwith- standing an act purported to have been approved before the actual adjournment, it was competent to show by parol evi- dence that the actual approval was not until the next day. In support of this ruling. People k. Purdy, 2 Hill, 31, was cited, where it was held that the court might go behind the statute:book and inquire whether an act to which a two- thirds vote was essential had constitution- ally passed. That, however, would not be in direct contradiction of the record, but it would be inquiring into a fact con- CH. VI.] OF THE ENACTMENT OF LAWS. 185 But under a provision of the Constitution of Minnesota, that the governor may approve and sign "within three days of the ad- journment of the legislature any act passed during the last three days of the session," it has been held that Sundays were not to be included as a part of the prescribed time ; ^ and under the Constitution of New York, which provided that, " if any bill shall not be returned by the governor within ten days, Sundays ex- cepted, after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the legisla- ture shall, by their adjournment, prevent its return, in which case it shall not be a law," ^ it was held that the governor might sign a bill after the adjournment, at any time within the ten days.8 The governor's approval is not complete until the bill has passed beyond his control by the constitutional and custom- ary mode of legislation; and at any time prior to that he may reconsider and retract any approval previously made.* His dis- cerning which the statute was silent, and other records supplied the needed infor- mation. In Indiana it is held that the courts cannot look heyond the enrolled act to ascertain whether there has heen compliance with the requirement of the constitution that no bill shall be pre- sented to the governor within two days next previous to the final adjournment. Bender v. State, 53 Ind. 254. 1 Stinson v. Smith, 8 Minn. 366. See also Corwin i-. Comptroller, 6 Kiah. 390. In South Carolina a bill sent to the gov- ernor on the last day of the first session may be signed by him on the first day of the next regular session, notwithstanding an adjourned session has intervened. Ar- nold V. McKeHnr, 9 S. C. 335. In Mis- sissippi if a bill is presented within ten days of the adjournment, it may be ap- proved at any time before the third day of the next session. State v. Coahoma Co., 64 Miss. 358. 2 See McNiel v. Commonwealth, 12 Bush, 727. In computing the ten days, the first day should be excluded. Beau- deau V. Cape Girardeau, 71 Mo. 392. ' People V. Bowen, 30 Barb. 24, and 21 N. T. 517. See also State v. Fagan, 22 La. Ann. 545; Solomon v. Commis- sioners, 41 Ga. 167 ; Darling v. Boesoh, 67 Iowa, 702 ; Seven Hickory v. EUery, 103 U. S. 423. It seems that in Nebraska, in a similar provision, by " adjourn- ment "is meant the final adjournment; and if the same session is adjourned for a time — in this case two months — the governor must act upon the bill within the specified number of days. Miller V. Hurford, 11 Neb. 377. Where on the tenth day the governor sent a bill with his objections to the house with which it originated, but the messenger, finding the house had adjourned for the day, re- turned it to the governor, wlio retained it, it was held that to prevent the bill be- coming a law it should have been left with the proper officer of the house in- stead of being retained by the governor. Harpending v. Haight, 39 Cal. 189. In response to an unauthorized request, the governor returned a bill without objec- tions. The constitution provided that a bill, if not returned in five days, became law without his signature. Held, that his return was not covered by the provision, and that the bill became a law notwith- standing. Wolfe V. McCauU, 76 Va. 876. * People V. Hatch, 19 111. 283. An act apportioning the representatives was passed by the legislature and transmitted to the governor, who signed his approval thereon by mistake, supposing at the time that he was subscribing one of sev- eral other bills then lying before him, and claiming his official attention ; his private secretary thereupon reported the bill to the legislature as approved, not by the special direction of the governor, nor with his knowledge or special assent, but merely in his usual routine of customary duty, the governor not being conscious 186 CONSTITUTIONAL LIMITATIONS, [CH. VL approval of a bill is communioated to the house in which it origi- nated, with his reasons; and it is there reconsidered, and may be again passed over the veto by such vote as the constitution prescribes.^ that he had placed his signature to the bill until after information was brought to him of its having been reported ap- proved ; whereupon he sent a message to the speaker of the house to which it was reported, stating that it had been inad- vertently signed and not approved, and on the same day completed a veto mes- sage of the bill, which was partially written at the time of signing his approval, and transmitted it to the house where the bill originated, having first erased his signa- ture and approval. It was held that the bill had not become a law. It had never passed out of the governor's possession after it was received by him until after he had erased his signature and approval; and the court was of opinion that it did not pass from his control until it had be- come a law by the lapse of ten days under the constitution, or by his depositing it with his approval in the office of the sec- retary of state. It had long been the practice of the governor to report, for^ merly through the secretary of state, but recently through his private secretary, to the house where bills originated, his ap- proval of them ; but this was only a matter of formal courtesy, and not a proceeding necessary to tlie making or imparting vitality to the law. By it no act could become a law which without it would not be a law. Had the governor returned the bill itself to the house, with his message of approval, it would have passed beyond his control, and the ap- proval could not have been retracted, unless the bill had been withdrawn by consent of the house ; and the same re- sult would have followed his filing the bill with the secretary of state with his approval subscribed. The Constitution of Indiana provides (art. 5, § 14) that, " if any bill shall not be returned by the governor within three days, Sundays excepted, after it shall have been presented to him, it shall be a law without his signature, unless the gen- eral adjournment shall prevent its return ; in which case it shall be a law unless the governor, within five days next after the adjournment, shall file such bill, with his objections thereto, in the office of the secretary of state," &c Under this pro- vision it was held that where the gover- nor, on the day of the final adjournment of the legislature, and after the adjourn- ment, filed a bill received that day, in the office of the secretary of state, without approval or objections thereto, it thereby became a law, and he could not file ob- jections afterwards. Tarlton v. Peggs, 18 Ind. 24. See State v, Whisner, 35 Ean. 271. If in approving a bill the governor signs in the wrong place, he may sign again after adjournment. Nat. Land and Loan Co. v. Mead, 14 Atl, Eep. 689 ( Vt.). An act of the legislature takes effect when the governor signs it, unless the constitution contains some different pro- vision. Hill V. State, 5 Lea, 725. 1 A bill which, as approved and signed, differs in important particulars from the one signed, is no law. Jones v. Hutchin- son, 43 Ala. 721. If the governor sends back a bill which has been submitted to him, stating that he cannot act upon it because of some supposed informality in its passage, this is in effect an objection to the bill, and it can only become a law by further action of the legislature, even though the governor may have been mistaken as to the supposed informality. Birdsall v. Carrick, 3 Nev. 154. If an act passed over a veto is duly authenticated other- wise, the absence of the governor's sig- nature will not vitiate it. Hovey v. State, 21 N. E. Rep. 21 (Ind.). In practice the veto power, although very great and exceedingly important in this country, is obsolete in Great Britain, and no king now ventures to resort to it. As the Ministry must at all times be in accord with the House of Commons, — except where the responsibility is taken of dissolving the Parliament and appeal- ing to the people, — it must follow that any bill which the two houses have passed must be approved by the monarch. The approval has become a matter of course, and the governing power in Great Britain is substantially in the House of Commons. I Bl. Com. 184-186, and notes. CH. VI.] OF THE ENACTMENT OF LAWS. 187 Other Powers of the Governor. The power of the goTernor as a branch of the legislative de- partment is almost exclusively confined to the approval of bills. As executive, he communicates to the two houses information concerning the condition of the State, and may recommend meas- ures to their consideration, but he cannot originate or introduce bills. He may convene the legislature in extra session whenever extraordinary occasion seems to have arisen ; but their powers when convened are not confined to a consideration of the subjects to which their attention is called by his proclamation or his mes- sage, and they may legislate on any subject as at the regular sessions.! An exception to this statement exists in those States where, by the express terms of the constitution, it is provided that when convened in extra session the legislature shall consider no subject except that for which they were specially called to- gether, or which may have been submitted to them by special message of the governor.^ When Acts are to take Effect. The old rule was that statutes, unless otherwise ordered, took effect from the first day of the session on which they were passed ; ^ but this rule was purely arbitrary, based upon no good reason, and frequently working very serious injustice. The present rule is that an act takes effect from the time when the formalities of enactment are actually complete under the constitution, unless it 1 The Constitution of Iowa, art. 4, rived from the governor's proclamation, § 11, provides that the governor " may, are not confined to the special purpose on extraordinary occasions, convene the for which it may have been convened by General Assembly by proclamation, and him." shall state to both houses, when assem- ^ Provisions to this effect will be bled, the purpose for which they have found in the Constitutions of Illinois, been convened." It was held in Morford Michigan, Missouri, and Nevada ; per- V. Unger, 8 Iowa, 82, that the General haps in some others. As to what mat- Assembly, when thus convened, were not ters are held embraced in such call, confined in their legislation to the pur- see State v. Shores, 7 S. E. Kep, 413 {W. poses specified in the message. " When Va.) ; Baldwin v. State, 21 Tex. App. lawfully convened, whether in virtue of 691. Confirmation of appointment by the provision in the constitution or the the Senate may be made. The limita- governor's proclamation, it is the 'General tion is upon legislation. People v. Blan- Assembly ' of the State, in which the full ding, 63 Cal. 333. and exclusive legislative authority of the * 1 Lev. 91 ; Latless v. Holmes, 4 T. State is vested. Where its business at R. 660; Smith v. Smith, Mart. (N. C.) 26; such session is not restricted by some Hamlet v. Taylor, 6 Jones L. 36. This constitutional provision, the General As- is changed by 33 Geo. III. o. 13, by which sembly may enact any law at a special statutes since passed take efiect from the or extra session that it might at a reg- day when they receive the royal assent, ular session. Its powers, not being de- unless otherwise ordered therein. 188 CONSTITUTIONAL LIMITATIONS. [CH. VL is otherwise ordered, or unless there is some constitutional or statutory rule on the subject which prescribes otherwise.^ By the Constitution of Mississippi,^ " no law of a general nature, un- less otherwise provided, shall be enforced until sixty days after the passage thereof." By the Constitution of Illinois,^ no act of the General Assembly shall take effect until the first day of July next after its passage, unless in case of emergency (which emer- gency shall be expressed in the preamble or body of the act) the General Assembly shall, by a vote of two-thirds of all the mem- bers elected to each house, otherwise direct. By the Constitution of Michigan,* no public act shall take effect, or be in force, until the expiration of ninety days from the end of the session at which the same is passed, unless the legislature shall otherwise direct by a two-thirds vote of the members elected to each house. These and similar provisions are designed to secure, as far as possible, the public promulgation of the law before parties are bound to take notice of and act under it, and to obviate the injustice of a rule which should compel parties at their peril to know and obey a law of which, in the nature of things, they could not possibly have heard ; they give to all parties the full constitutional period in which to become acquainted with the terms of the statutes which are passed, except when the legislature has otherwise directed ; and no one is bound to govern his conduct by the new law until that period has elapsed.^ And the fact that, by the 1 Matthews y. Zane, 7 Wheat. 164 ; ' » Art. 3, § 23. The intention that an Rathbone v. Bradford, 1 Ala. 312 ; Branch act shall take effect sooner must be et- Bank of Mobile «. Murphy, 8 Ala. 119; pressed clearly and unequiToeally ; it is Heard v. Heard, 8 Ga. 380 ; Goodsell v not to be gathered by intendment and in- Boynton, 2 111. 565 ; Dyer v. State, Meigs, ference. Wheeler o. Chubbuck, 16 111. 237 ; Parkinson v. State, 14 Md. 184 ; 361. See Hendrickson v. Hendrickson, 7 Freeman v. Gaither, 76 Ga. 741. An Ind. 13. early Virginia case decides tliat " from Where an act is by its express terms to and after the passing of this act " would take effect after publication in a specified exclude the day on which it was passed, newspaper, every one is bound to take King V. Moore, Jefferson, 9. Same ruling notice of this fact ; and if before such in Parkinson v. Brandenberg, 85 Minn, publication negotiable paper is issued 294. On the other hand, it is held in under it, the purchasers of such paper some cases that a statute which takes can acquire no rights thereby. McClure effect from and after its passage, has v. Oxford, 94 TJ. S. 429 ; following George relation to the first moment of that day. v. Oxford, 16 Kan. 72. In re Welman, 20 Vt. 653 ; Mallory v. * Art. 4, § 20. Hiles, 4 Met. (Ky.) 53; Wood v. Fort, « Price v. Hopkin, 13 Mich. 318. A 42 Ala. 641 ; Hill v. State, 5 Lea, 725. provision that " subsequent to the pas- Others hold that it has effect from the sage of this act " the law should be as moment of its approval by the governor, declared, does not come into force till People V. Clark, 1 Cal. 406. See In re after ninety days. Andrews v. St. Louis Wynne, Chase Dec. 227. Tunnel Co., 16 Mo. App. 299. See, how- ^ Art. 7, § 6. See State ». Coahoma ever, Smith v. Morrison, 22 Pick. 430 ; Co., 64 Miss. 358. Stine i-. Bennett, 13 Minn. 153. Compare CH. VI.] OF THE ENACTMENT OF LAWS. 189 terms of the statute, something is to be done under it before the expiration of the constitutional period for it to take effect, will not amount to a legislative direction that the act shall take effect at that time, if the act itself is silent as to the period when it shall go into operation.^ The Constitution of Indiana provides ^ that " no act shall take effect until the same shall have been published and circulated in the several counties of this State, by authority, except in case of emergency ; which emergency shall be declared in the preamble, or in the body of the law." Unless the emergency is thus de- clared, it is plain that the act cannot take earlier effect.* But the courts will not inquire too nicely into the mode of publication. If the laws are distributed in bound volumes, in a manner and shape not substantially contrary to the statute on that subject, and by the proper authority, it will be held sufficient, notwith- standing a failure to comply with some of the directory provisions of the statute on the subject of publication.* The Constitution of Wisconsin, on the other hand, provides ^ that " no general law shall be in force until published ; " thus leaving the time when it should take effect to depend, not alone upon the legislative direction, but upon the further fact of publi- cation. But what shall be the mode of publication seems to be left to the legislative determination. It has been held, however, that a general law was to be regarded as published although printed in the volume of private laws, instead of the volume of public laws, as the statute of the State would requke.* But an State V. Bond, 4 Jones (N. C), 9. "Where could not be helped out by any sort of a law lias failed to take effect for want intendment or implication," and that the of publication, all parties are chargeable act must all take effect at once, and not with notice of that fact. Clark v. Janes- by piecemeal Tille, 10 Wis. 136. " Art. 4, § 28. 1 Supervisors of Iroquois Co. ». Keady, ' Carpenter v. Montgomery, 7 Blackf. 34 111. 293. An act for the removal of a 415 ; Hendrickson v. Hendrickson, 7 Ind. county seat provided for taking the vote 13; Mark v. State, 15 Ind. 98. The le- of the electors of the county upon it on gislature must necessarily in these cases the 17th of March, 1863, at which time be judge of the existence of the emer- the legislature had not adjourned. It was gency. Carpenter u. Montgomery, su;)ra. not expressly declared in the act at what The Constitution of Tennessee provides time it should take effect, and it was that " No law of a general nature shall therefore held that it would not take take effect until forty days after its pas- effect until sixty days from the end oi sage, unless the same, or the caption, the session, and a vote of the electors shall state that the public welfare requires taken on the 17th of March was void, that it should take effect sooner." Art.1, See also Eice v. Ruddiman, 10 Mich. 125 ; § 20. Bogers v. Vass, 6 Iowa, 405. And It was * State i>. Bailey, 16 Ind. 46. See also held in the case first named, and in further, as to this constitutional provi- Wheeler v. Chubbuck, 16 111. 861, that sion, Jones v. Cavins, 4 Ind. 305. " the direction must be made in a clear, ' Art 7, § 21. distinct, and unequivocal provtsion, and « Matter of Boyle, 9 Wis. 264. Under 190 CONSTITUTIONAL LIMITATIONS. [CH. VI. unauthorized publication — as, for example, of an act for the incorporation of a city, in two local papers instead of the State paper - — is no publication in the constitutional sense.'' The Con- stitution of Louisiana provides that "No law passed by the General Assembly, except the general appropriation act, or act appropriating money for the expenses of the General Assembly, shall take effect until promulgated. A law shall be considered promulgated at the place where the State journal is published, the day after the publication of such law in the State journal, and in all other parts of the State twenty days after such publication." Under similar provisions in the Civil Code, before the adoption of this constitution, it was held that " the promulgation of laws is an executive function. The mode of promulgation may be pre- scribed by the legislature, and differs in different countries and at different times. . . . Promulgation is the extrinsic act which gives a law, perfect in itself, executory force. Unless the law prescribes that it shall be executory from its passage, or from a certain date, it is presumed to be executory only from its promul- gation." 2 But it is competent for the legislature to provide in an act that it shall take effect from and after its passage ; and the act will have operation accordingly, though not published in the official gazette.^ In Pennsylvania, whose constitution then in force also failed to require publication of laws, the publication was nevertheless held to be necessary before the act could come into operation ; but as the doings of the legislature were publicj and the journals published regularly, it was held that every enact- ment must be deemed to be published in the sense necessary, and the neglect to publish one in the pamphlet edition of the laws would not destroy its validity.* The Constitution of Iowa provides that " no law of ihe Gen- eral Assembly, passed at a regular session, of a public nature, shall take effect until the fourth day of July next after the pas* this proTision it has been decided that a ' Clark v. Janesville, 10 Wis. 136i law establishing a municipal court in a See, further, Mills v. Je£ferson, 20 Wig. city is a general law. Matter of Boyle, 60. supra. See Eitel v. State, 33 Ind. 201. a State v. Ellis, 17 La. Ann. 890, 392. Also a statute for the removal of a county » State v. Judge, 14 La. Ann. 486; seat. State ». Lean, 9 Wis. 279. Also a Thomas v. Scott, 23 La. Ann. 689. In statute incorporating a municipality, or Maryland a similar conclusion is reached, authorizing it to issue bonds in aid of a Parkinson v. State, 14 Md. 184. railroad. Clark v. Janesville, 10 Wis. * Peterman v. Huling, 31 Pa. St. 432. 136. And see Scott v. Clark, 1 Iowa, 70. A joint resolution of a general nature An inaccuracy in the publication of a requires the same publication as any statute, which does not change its sub- other law. State ti. School Board Fund, stance or legal effect, will not invalidate 4 Kan. 261. the publication. Smith b. Hoy 1. 14 Wis. 252. CH. vl] of the enactment of laws. 191 sage thereof. Laws passed at a special session shall take effect ninety days after the adjournment of the General Assembly by which they were passed. If the General Assembly shall deem any law of immediate importance, they may provide that the same shall take effect by publication in newspapers in the State." ^ Under this section it is not competent for the legisla- ture to confer upon the governor the discretionary power which the constitution gives to that body, to fix an earlier day for the law to take effect.^ 1 Art. 3, § 26. See Hunt v. Murray, « Scott v. Clark, 1 Iowa, fO ; Pilkey v, 17 Iowa, 313. Gleason, 1 Iowa, 622. 192 CONSTITUTIONAL LIMITATIONS. [CH. VII. CHAPTER VII. OF THE CIRCUMSTANCES UNDER WHICH A LEGISLATIVE ENACTMENT MAT BE DECLARED UNCONSTITUTIONAL. In the preceding chapters we have examined somewhat briefly the legislative power of the State, arid the bounds which expressly or by implication are set to it, and also some of the conditions necessary to its proper and valid exercise. In so doing it has been made apparent that, under some circumstances, it may be- come the duty of the courts to declare that what the legislature has assumed to enact is void, either from want of constitutional power to enact it, or because the constitutional forms or condi- tions have not been observed. In the further examination of our subject, it will be important to consider what the circumstances are under which the courts will feel impelled to exercise this high prerogative, and what px'ecautions should be observed before assuming to do so. It must be evident to any one that the power to declare a le- gislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and oflScial oath decline the responsibility. The legislative and judicial are co-ordinate departments of the government, of equal dignity ; each is alike supreme in the exercise of its proper functions, and cannot directly or indirectly, while acting within the limits of its authority, be subjected to the control or super- vision of the other, without an unwarrantable assumption by that other of power which, by the constitution, is not conferred upon it. The constitution apportions the powers of government, but it does not make any one of the three departments subordinate to another, when exercising the trust committed to it.^ The courts may declare legislative enactments unconstitutional and void in some cases, but not because the judicial power is superior in degree or dignity to the legislative. Being required to declare what the law is in the cases which come before them, they must enforce the constitution as the paramount law, whenever a legis- 1 Bates V. Kimball, 2 Chip. 77 ; Bailey Hawkins ». GoTernor, 1 Ark. 570 ; Peo- V. Philadelphia, &o. R. R. Co., 4 Hair, pie v. Governor, 29 Mich. 320; s. c. 18 389 ; Whittiugton v. Folk, 1 H. & J. 236 ; Am. Rep. 89. CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 193 lative enactment comes in conflict with it..* But the courts sit, not to review o:* rerise the legislative action, but to enforce tlie legislative will ; and it is only where they find that the legislature has failed l^o keep within its constitutional limits, that they are at liberty to disregard its action ; and in doing so, they only do what every private citizen may do in respect to the mandates of the courts when the judges assume to act and to render judg- ments or decrees without jurisdiction. " In exercising this high authority, the judges claim no judicial supremacy ; they are only the administrators of the public wilL If an act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the con- stitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law." ^ Nevertheless, in declaring a law unconstitutional, a court must necessarily cover the same ground which has already been cov- ered by the legislative department in deciding upon the propriety of enacting the law, and they must indirectly overrule the deci- sion of that co-ordinate department. The task is therefore a delicate one, and only to be entered upon with reluctance and hesitation. It is a solemn act in any case to declare that that body of men to whom the people have committed the sovereign function of making tlie laws for the commonwealth have delib- erately disregarded the limitations imppsed upon this delegated authority, and usurped power which the people have been careful to withhold ; and it is almost equally so when the act which is adjudged to be unconstitutional appears to be chargeable rather to careless and improvident action, or error in judgment, than to intentional disregard of obligation. But the duty to do this in a proper case, though at one time doubted, and by some persons persistently denied, it is now generally agreed that the courts cannot properly decline, and in its performance they seldom fail of proper support if they proceed with due caution and circum- spection, and under a proper sense as well of their own respon- sibility, as of the respect due to the action and judgment of the lawmakers.' 1 Rice V. State, 7 Ind. 332 ; Bloodgood to enforcee unconstitutional enactments. B.Mohawk & Hudson Bailroad Co., 18 One of tliese — the case of Trevett v. ■^end 9 Weedon, decided by the Superior Court 2 lindsay v. Commissioners, &e., 2 Bay, of Rhode Island in 1786 - is particularly 38 61 ; People v. Bucker, 5 Col. 5. interesting as being the first case m which '» There are at least two cases in Amer- a legislative enactment was declared un- ican judicial history where judges have constitutional and void on the ground of been impeached as criminals for refusing incompatibility with the State constUur 13 194 CONSTITUTIONAL LIMITATIONS. [CH. VII. I. In view of the considerations which have been suggested, the rule which is adopted by some courts, that they will not de- tion. Mr. Arnold, in his history of Rhode Island, Vol. II. c. 24, gives an account of this case ; and the printed brief in oppo- sition to the law, and in defence of the impeached judges, is in possession of the present writer. The act in question was one which imposed a heavy penalty on any one who should refuse to receive on the same terms as specie the bills of a bank chartered by the State, or who should in any way discourage the circu- lation of such bills. The penalty was made collectible on summary conviction, without jury trial ; and the act was held void on the ground that jury trial was expressly given by the colonial charter, which then constituted the constitution of the State. Although the judges were not removed on impeachment, the legislature refused to re-elect them when their terms expired at the end of the year, and sup- planted them by more pliant tools, by whose assistance the paper money was forced into circulation, and public and private debts extinguished by means of it. Concerning the other case, we copy from the Western Law Monthly, " Sketch of Hon. Calvin Pease," Vol. V. p. 3, June, 186.3 : " The first session of the Su- preme Court [of Ohio] under the consti- tution was held at Warren, Trumbull County, on the first Tuesday of June, 1803. The State was divided into three circuits. . . . The Third Circuit of the State was composed of the counties of Washington, Belmont, Jefferson, Colum- biana, and Trumbull. At this session of the legislature, Mr. Pease was appointed President Judge of the Third Circuit in April, 1803, and though nearly twenty- seven years old, he was very youthful in his appearance. He held the ofSce until March 4, 1810, when he sent his resigna- tion to Governor Huntingdon. . . . Dur- ing his term of service upon the bench many interesting questions were presented for decision, and among them the consti- tutionality of some portion of the act of 1805, defining the duties of justices of the peace ; and he decided that so much of the fifth section as gave justices of the peace jurisdiction exceeding $20, and so much of the twenty-ninth section as pre- vented plaintiffs from recovering costs in actions commenced by original writs in the Court of Common Pleas, for sums be- tween $20 and S50, were repugnant to the Constitution of the United States and of the State of Ohio, and therefore null and void. . . . The clamor and abuse to which this decision gave rise was not in the least mitigated or diminished by the circumstance that it was concurred in by a majority of the judges of the Supreme Court, Messrs. Huntingdon and Tod. . . .At the session of the legis- lature of 1807-8, steps were taken to impeach him and the judges of the Supreme Court who concurred with him ; but the resolutions introduced into the House were not acted upon during the session. But the scheme was not abandoned. At an early day of the next session, and with almost indecent haste, a committee was appointed to inquire into the conduct of the offending judges, and with leave to exhibit articles of im- peachment, or report otherwise, as the facts might justify. The committee with- out delay reported articles of impeach- ment against Messrs. Pease and Tod, but not against Huntingdon, who in the mean time had been elected governor of the State. . . . The articles of impeach- ment were preferred by the House of Rep- resentatives on the 23d day of December, 1808. He was summoned at once to ap- pear before the senate as a high court of impeachment, and he promptly obeyed the summons. The managers of the pro- secution on the part of the House were Thomas Morris, afterwards senator in Congress from Ohio, Joseph Sharp, James Pritcliard, Samuel Marrett, and Othniel Tooker. . . . Several days were con- sumed in the investigation, but the trial resulted in the acquittal of the respon- dent." Sketch of Hon. George Tod, Au- gust number of same volume : " At the session of the legislature of 1808-9, he was impeached for concurring in decisions made by Judge Pease, in the counties of Trumbull and Jefferson, that certain pro- visions of the act of the legislature, passed in 1805, defining the duties of justices of the peace, were in conflict with the Con- stitution of the United States and of the State of Ohio, and therefore void. These decisions of the courts of Common Pleas and of the Supreme Court, it was insisted. CH. VII.] DECLAEING STATUTES UNCONSTITUTIONAL. 195 cide a legislative act to be unconstitutional by a majority of a bare quorum of the judges only, — less than a majority of all, — but will instead postpone the argument until the bench is full, seems a very prudent and proper precaution to be observed before entering upon questions so delicate and so important. The bene- fit of the wisdom and deliberation of every judge ought to be had under circumstances so grave. Something more than private rights are involved ; the fundamental law of the State is in ques- tion, as well as the correctness of legislative action ; and consid- erations of courtesy, as well as the importance of the question involved, should lead the court to decline to act at all, where they cannot sustain the legislative action, until a full bench has been consulted, and its deliberate opinion is found to be against it. But this is a rule of propriety, not of constitutional obligation ; and though generally adopted and observed, each court will regu- late, in its own discretion, its practice in this particular.^ were not only an assault upon the wisdom and dignity, but also upon the supremacy of the legislature, which passed the act in question. This could not be endured ; and the popular fury against the judges rose to a very high pitch, and the senator from the county of Trumbull in the legis- lature at that time, Calvin Cone, Esq., took no pains to soothe the offended dig- nity of the members of that body, or their sympathizing constituents, but pressed a contrary line of conduct. The judges must be brought to justice, he insisted veliemently, and be punished, so that others might be terrified by the example, and deterred from committing similar of- fences in the future. The charges against Mr. Tod were substantially the same as those against Mr. Pease. Mr. Tod was first tried, and acquitted. The managers of the impeachment, as well as the result, were the same in both cases." • Briscoe v. Commonwealth Bank of Kentucky, 8 Pet. 118. Jt has been in- timated that inferior' courts should not presume to pass upon constitutional ques- tions, but ought in all cases to treat stat- utes as valid. Ortman v. Greenman, 4 Mich. 291. But no tribunal can exercise judicial power unless it is to decide ac- cording to its judgment ; and it is difficult to discover any principle of justice which can require a magistrate to enter upon the execution of a statute when he be- lieves it to be invalid, especially when he must thereby subject himself to prosecu- tion, without any indemnity in the law if it proves to be invalid. Undoubtedly when the highest courts in the land hesi- tate to declare a law unconstitutional, and allow much weight to the legislative judg- ment, the inferior courts should be still more reluctant to exercise this power, and a becoming modesty would at least be expected of those judicial officers who have not been trained to the investigation of legal and constitutional questions. But in any case a judge or justice, being free from doubt in his own mind, and unfet- tered by any judicial decision properly binding upon himy must follow his own sense of duty upon constitutional, as well as upon any other questions. See Miller V. State, 3 Ohio St.476 ; Pim v. Nicholson, 6 Ohio St. 176 ; Mayberry ». Kelly, 1 Kan. 116. In the case last cited it is said : " It is claimed by counsel for the plaintiff in error, that the point raised by the instruc- tion is, that inferior courts and ministerial officers have no right to judge of the con- stitutionality of a law passed by a legis- lature. But is this law ? If so, a court created to interpret the law must disre- gard the constitution in forming its opin- ions. The obnstitution is law, — the fun- damental law, — and must as much be taken into consideration by a justice of the peace as by any other tribunal. When two laws apparently conflict, it is the duty of all courts to construe them. If the conflict is irreconcilable, they must decide which is to prevail; and tlie con- 196 CONSTITUTIONAL, LIMITATIONS. [CH. VIL II. Neither will a court, as a general rule, pass upon a con- stitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determi- nation of the cause. " While courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their wg,y to find such topics. They will not seek to draw in such weighty matters collaterally, nor on trivial occa- sions. It is both more proper and more respectful to a co-ordinate department to discuss constitutional questions only when that is the very lis mota. Thus presented and determined, the decision carries a weight with it to which no extra-judicial disquisition is entitled." ^ In any case, therefore, where a constitutional ques- tion is raised, though it may be legitimately preseated by the record, yet if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable.* III. Nor will a court listen to an objection made to the consti- tutionality of an act by a party whose rights it does not affect, and who has therefore no interest in defeating it.^ On this ground it has been held that the objection that a legislative act was unconstitutional, because divesting the rights of remainder- men against their will, could not be successfully urged by the owner of the particular estate, and pould only be made on behalf of the remainder-men themselves.* And a party who has as- sented to his property being taken under a statute cannot after- wards object that the statute is in violation of a provision in the constitution designed for the protection of private property.' stitntion i^ not an exception to this rule land, &o. R. R. Co. v. County Court, 10 of construction. If a law were passed in Bush, 664 ; White v. Scott, 4 Barb. 56 ; open, flagrant violation of the constitu- Mobile & Ohio Railroad Co. v. State, 29 tion, should a justice of the peace regard Ala. 673. the law, and pay no attention to the con- » People v. Rensselaer, &o. R. R. Co., stitutional provision ? If that is his duty 16 Wend. 113 ; s. c. 30 Am. Dec. 33 ; in a plain case, is it less so when the con- Smith v. Inge, 80 Ala. 283. struction becomes more difficult ? " * Sinclair v. Jackson, 8 Cow. 548. See 1 Hoover v. Wood, 9 Ind. 286, 287 ; Ire- also Smith v. McCarthy, 66 Pa. St 359 ; land V. Turnpike Co., 19 Ohio S.t. 369-; Antoni v. Wright, 22 Gratt. 857 ; Marshall Smith V. Speed, 50 Ala. 276 ; AUor u. v. Donovon, 10 Bush, 68l! Auditors, 43 Mich. 76 ; Board of Educa- * Embury v. Conner, 8 N. Y. 511 ; tion V. Mayor of Brunswick, 72 Ga. 853. Baker v. Braman, 6 Hill, 47; Mobile & See People v. Kenney, 96 N. Y. 294. Ohio Railroad Co. ». State, 29 Ala. 586; « Ex parte Randolph, 2 Brock. 447 ; Haskell v. New Bedford, 108 Mass. 208. Frees v. Ford, 6 N. Y. 176, 178 ; Cumber- CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 197 The statute is assumed to be valid, until some one complains whose rights it invades. ^^ Prima facie, and upon the face of the act itself, nothing will generally appear to show that the act is not valid ; and it is only when some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void, as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained. Respect for the legislature, therefore, concurs with well-established principles of law in the conclusion that such an act is not void, but voidable only ; and it follows, as a necessary legal inference from this position, that this ground of avoidance can be taken advantage of by those only who have a right to question the validity of the act, and not by strangers. To this extent only is it necessary to go, in order to secure and protect the rights of all persons against the unwarranted exercise of legislative power, and to this extent only, therefore, are courts of justice called on to interpose." ^ IV. Nor can a court declare a statute unconstitutional and void, solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited or such rights guaranteed or protected by the consti- tution. It is true there are some reported cases, in which judges have been understood to intimate a doctrine different from what is here asserted ; but it will generally be found, on an examination of those cases, that what is said is rather by way of argument and illustration, to show the unreasonableness of putting upon consti- tutions such a construction as would permit legislation of the objectionable character then in question, and to induce a more cautious and patient examination of the statute, with a view to discover in it, if possible, some more just and reasonable legisla- tive intent, than as laying down a rule by which courts would be at liberty to limit, according to their own judgment and sense of justice and propriety, the extent of legislative power in directions in which the constitution had imposed no restraint. Mr. Justice Story, in one case, in examining the extent of power granted by the charter of Rhode Island, which authorized the General As- sembly to make laws in the most ample manner, "so as such laws, «fee., be not contrary and repugnant unto, but as near as may be agreeable to, the laws of England, considering the nature 1 Wellington, Petitioner, 16 Pick. 87, 96. bany St., 11 Wend. 149; Williamson ». And see Hingham, &c. Tumlwke Co. v. Carlton, 61 Me. 449; State v, Bich, 20 Norfolk Co., 6 Allen, 353; De Jamette ». Miss. 893; Jones v. Black, 48 Ala. 540; Haynes, 23 Miss. 600; Sinclair u. Jackson, Cora. w. Wright, 79 Ky. 22; Bumside v. 8 Cow. 543, 579 ; Heyward «. Mayor, &c. Lincoln Co. Ct, 86 Ky. 423. of New York, 8 Barb. 486 ; Matter of Al- 198 CONSTITUTIONAL LIMITATIONS. [CH. VII. and constitution of the place and people there," expresses himself thus : " What is the true extent of the power thus granted must be open to explanation as well by usage as by construction of the terms in which it is given. In a government proffessing to regard the great rights of personal liberty and of property, and which is required to legislate in subordination to the general laws of England, it would not lightly be presumed that the great princi- ples of Magna Charta were to be disregarded, or that the estates of its subjects were liable to be taken away without trial, without notice, and without offence. Even if such authority could be deemed to have been confided by the charter to the General As- sembly of Rhode Island, as an exercise of transcendental sover- eignty before the Revolution, it can scarcely be imagined that that great event could have left the people of that State subjected to its uncontrolled and arbitrary exercise. That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body, without any restraint. The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them — a power so repugnant to the common principles of justice and civil liberty — lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well-being, without very strong and direct expressions of such an intention." " We know of no case in which a legislative act to transfer the property of A. to B. without his consent has ever been held a constitutional exercise of legislative power in any State in the Union. On the contrary, it has been constantly re- sisted, as inconsistent with just principles, by every judicial tri- bunal in which it has been attempted to be enforced." ^ The I Wilkinson v. Lelaud, 2 Pet. 627, 057. 282, the court held an act which di- 8ee also what is said by the same judge vested :a man of his freehold and passed in Terrett v. Taylor, 9 Cranch, 43. " It it over to another, to be void " as against is clear that statutes passed against plain common right as well as against Magna and obvious principles of common right Charta." In Regents of University v. and common reason are absolutely null Williams, 9 Gill & J. 366; s. c. 31 Am. and void, so far as they are calculated to Dec. 72, it was said that an act was void operate against those principles." Ham as opposed to fundamental principles of V. McClaws, 1 Bay, 98. But the question right and justice inherent in the nature in that case was one of construction ; and spirit of the social compact. But the whether the court should give to a statute court had already decided that the act a construction which would make it oper- was opposed, not only to the constitution ate against common right and common of the State, but to that of the United reason. In Bowman v. Middleton, I Bay, States also. See Mayor, &c. of Baltimore CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 199 question discussed by the learned judge in this case is perceived to have been, What is the scope of a grant of legislative power to be exercised in conformity with the laws of England ? Whatever he says is pertinent to that question ; and the considerations he suggests are by way of argument to show that the power to do certain unjust and oppressive acts was not covered by the grant of legislative power. It is not intimated that if they were within the grant, they would be impliedly prohibited because unjust and oppressive. In another case, decided in the Supreme Court of New York, one of the judges, in considering the rights of the city of New York to certain corporate property, used this language: "The inhabitants of the city of New York have a vested right in the City Hall, markets, water-works, ferries, and other public property, which cannot be taken from them any more than their individual dwellings or storehouses. Their rights, in this respect, rest not merely upon the constitution, but upon the great principles of eternal justice which lie at the foundation of all free govern- ments." ^ The great principles of eternal justice which affected the particular case had been incorporated in the constitution; and it therefore became unnecessary to consider what would otherwise have been the rule ; nor do we understand the court as intimating any opinion upon that subject. It was sufficient for the case, to find that the principles of right and justice had been recognized and protected by the constitution, and that the people had not assumed to confer upon the legislature a power to deprive the city of rights which did not come from the constitution, but from principles antecedent to and recognized by it. So it is said by Mosmer, Ch. J,, in a Connecticut case : " With those judges who assert the omnipotence of the legislature in all cases where the constitution has not interposed an explicit re- straint, I cannot agree. Should tjiere exist — what I know is not only an incredible supposition, but a most remote improbability — a case of direct infraction of vested rights, too palpable to be questioned and too unjust to admit of vindication, I could not avoid considering it as a violation of, the social compact, and within the control of the judiciary. If, for example, a law were made without any cause to deprive a person of his property, or to v. State, 15 Md. 376. In Godcharies v. (W. Va.), where mining companies were Wigeman, 113 Pa. St. 431, a statute for- forbidden to sell to employees raerchan- bidding payments in store orders was dise at a higher rate than they sold it to held void as preventing persons sui juris others. from making their own contracts. A ^ Benson ». Mayor, &c. of New York, similar rule was laid down in State v. 10 Barb. 223, 244. Fire Creek, &c. Co., 10 S. E. Rep. 288 200 OONSTITUTIOKAL LIMITATIONS. [oH. VII. subject hinl to imprisonment, who would not question its legality, and who would aid in carrying it into effect ? On the other hand, I cannot harmonize with those who deny the power of the legislar ture to make laws, in any case, which, with entire justice, operate on antecedent legal rights. A retrospective law may be just and reasonable, and the right of the legislature to enact one of this description I am not speculatist enough to question." * The cases here supposed of unjust and tyrannical enactments would prob- ably be held not to be within the power of any legislative body in the Union. One of them would be clearly a bill of a,ttaiuder ; the othtr, unless it was in the nature of remedial legislation, and susceptible of being defended on that theory, would be an exercise of judicial power, and therefore in excess of kgislative authority, because not included in the apportionment of power made to tliat department. No question of implied prohibition would arise in either of these cases ; but if the grant of power had covered them, and there had been no express limitation, there would, as it seems to us, be very great probability of unpleasant and dangerous con- flict of authority, if the courts were to deny validity to legislative action on subjects within their control, on the assumption that the legislature had disregarded justice or sound policy. The moment a court ventures to substitute its own judgment for that of the legislature, in any case where the constitution has vested the legislature with power over the subject, that moment it enters upon a field where it is impossible to set limits to its authority, and where its discretion alone will measure the extent of its interference.^ The rule of law upon this subject appears to be, that, except 1 Goshen v. SloningtiSft, 4 Conn. 209, to chasten their hardness by construction. 225. Such is the imperfection of the best hu- ' " If tlie legislature sliould pass a law man institutions, that, mould them as we in plain and unequirocal language, within may, a large discretion must at last be the general scope of their constitutional reposed somewhere. The best and in powers, I know of no authority in this many oases the only security is in the government to pronounce such an act wisdom and integrity of public servants, void, merely because, in the opinion of and their identity witli the people. Go*» the judicial tribunals, it was contrary to emments cannot be administered without the principles of natural justice ; for this committing powers in trust and confi- would be vesting in the court a latitudi- dence." Beebe v. State, 6 Ind. 501, 528, narian authority which might be abused, per Stuart, J. And see Johnston v. Com' and would necessarily lead to collisions monwealth, 1 Bibb, 603 ; Flint River between the legisla,tife and judicial de- Steamboat Co. v. Foster, 6 Ga. 194; State partments, dangerous to the well-being of v. Eruttschnitt, 4 Nev. 178 ; Walker v. Society, or at least not in harmony with Cincinnati, 21 Ohio St. 14; Hills u. Chi- the structure of our ideas of natural gov- cago, 60 111. 86 ; Ballentine v. Mayor, &o., ernment." Per Rogers, J., in Common- 15 Lea, 63.'?; State v. Traders' Bank, 6 wealth V. McCloskey, 2 Rawle, 374. " All Sou. Rep. 582 (La.)-, the courts can do with odious statutes is CH. VII.] DECLARING STATUTES tJNCONSTITOTlONAL. 201 where the constitution has imposed limits upon the, legislative power^ it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, except as those rights are secured by some constitu- tional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within con- stitutional bounds, is by an appeal to the justice and patriotism of tlie representatives of the people. If this fail, the people in their sovereign capacity can correct the evil ; but courts cannot assume their rights.^ The judiciary can only arrest the execu* tion of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the lawmaking power.^ Any legislative ' act which does not encroach upon the powers apportioned to the other departments of the government, being prima facie valid, must be enforced, unless restrictions upon the legislative author^ ity can be pointed out in the constitution, and the case shown to come within them.* 1 Bennett v. Bull, Baldw. 74 ; Walker V. Cincinnati, 21 Ohio St. 14. " If the act itself is within the scope of their au- thority, it mnst stand, and we are bound to make it stand, if it will upon any intendment. It is its effect, not its pur- pose, which must determine its validity. Nothing but a clear violation of the con- stitution — a clear usurpation of power prohibited — will justify the judicial de- partment in pronouncing an act of the legislative department unconstitutional and void." Pennsylvania R. R. Co. v. Kiblet, 66 Pa. St. 164, 169. See Weber V. Reinhard, 73 Pa. St. 370; Chicago, &G. R. R. Co. V. Smith, 62 111. 268 ; People V. Albertson, 55 N. Y. SO, per Alkn, 3. ; Martin v. Dix, 52 Miss. 52, 64, per Chal- mers, J. ; Bennett ». Boggs, Baldw. 60, 74 j United States v. Brown, I Deady, 566 ; Commonwealth v. Moore, 25 Gratt. 951 ; Danville v. Pace, 25 Gratt. 1, 8 ; Relth- miller o. People, 44 Mich. 280 ; Munn v. Illinois, 94 U. S. 113; Eastman v. State, 109 Ind. 278. 2 Perkins, J., in Madison & Indiah- apolis Railroad Co. v. Whiteneok, 8 Ind. 217 ; Bull V. Read, 13 Gratt. 78, per Lee, J. So in Canada it is held that an act within the scope of legislative powet can- not be objected to as contrary to reason and justice. Be Goodhue, 10 Ch'y (Ont.), 366 ; Toronto, &c. R. Co. v. Crookshank, 4 Q. B. (Ont.) 818. 8 Sill V. Village of Coming, 15 N. Y. 297 ; Varick u. Smith, 5 Paige, 136 ; Coch- ran V, Van Surlay, 20 Wend. 865 ; Morris ». People, 3 Denio, 381 ;f Wynehamer ». People, 13 N. Y. 378 ; People «. Supervi- sors of Orange, 17 N. Y. 235 ; Dow ». No^ ris, 4 N. H. 16; Derby Turnpike Co. v. Parks, 10 Conn. 622, 543 ; Hartford Bridge Co. V. Union Peffy Co, 29 Conn. 210; Holden v. James, 11 Mass. 396 ; Adams v. Howe, 14 Mass. 840 ; s. o. 7 Am. Dec. 216 ; Norwich v. County Commissioners, 13 Pick. 60; Dawson ». Shaver, 1 Blackf. 206 ; Beauchamp v. State, 6 Blackf. 299 ; Doe V. Douglass, 8 Blackf. 10; Maize v. State, 4 Ind. 842; Stocking v. State, 7 Ind. 327; Beebe v. Slate, 6 Ind. 501; Newland v. Marsh, 19 111. 876, 384; Chicago, &c. R. R. Co. o. Smith, 62 111. 268; Gutman ». Virginia Iron Co., 5 W. Va. 22 ; Osburn v. Staley, 5 W. Va. 85 ; Yancy v. Yancy, 5 Heisk. 353 ; Bliss v. Commonwealth, 2 Litt. 90 ; State v. Ash- ley, 1 Ark. 518 ; Campbell v. Union Bank, 7 Miss. 625 ; Tate's Ex'r v. Bell, 4 Yerg. 202 ; S. c. 26 Am. Dec. 221 ; Andrews »■ State, 3 Heisk. 165 ; s. c. 8 Am. Rep. 8; Railroad v. Hicks, 9 Bax. 446; Wliitting- ton ». Polk, 1 Harr. & J. 236 : Norris v. Abingdon Academy, 7 Gill & J. 7 ; Harri- 202 CONSTITUTIONAL LIMITATIONS. [CH. VIL V. If the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, neither can they do so because they appear to the minds of the judges to violate fundamental principles of republican government, unless it shall be found that those principles are placed beyond legislative en- croachment by the constitution. The principles of republican government are not a set of inflexible rules, vital and active in the constitution, though unexpressed, but they are subject to variation and modification from motives of policy and public necessity ; and it is only in those particulars in which experience has demon- strated any departure from the settled practice to work injustice or confusion, that we shall discover an incorporation of them in the constitution in such form as to make them definite rules of action under all circumstances. It is undoubtedly a maxim of republican government, as we understand it, that taxation and representation should be inseparable ; but where the legislature interferes, as in many cases it may do, to compel taxation by a municipal corporation for local purposes, it is evident that this maxim is applied in the case in a much restricted and very im- perfect sense only, since the representation of the locality taxed is but slight in the body imposing the tax, and the burden may be imposed, not only against the protest of the local representa- tive, but against the general opposition of the municipality. The property of women is taxable, notwithstanding they are not al- lowed a voice in choosing representatives.^ The maxim is not entirely lost sight of in such cases, but its application in the particular case, and the determination how far it can properly and justly be made to yield to considerations of policy and expe- diency, must rest exclusively with the lawmaking power, in the absence of any definite constitutional provisions so embodying the maxim as to make it a limitation upon legislative authority .^ son 0. State, 22 Md. 468 ; State v. Lyles, field, 2 W. & S. 271 ; Harvey v. Thomas, 1 McCord, 238 ; Myers v. English, 9 Cal. 10 Watts, 63 ; Commonwealth v. Maxwell, 341; £a: parte Newman, 9 Cal. 602; Ho- 27 Pa. St. 444; Lewis's Appeal, 67 bart V. Supervisors, 17 Cal. 23 ; Crenshaw Pa. St. 153 ; Butler's Appeal, 73 Fa. V. Slate River Co., 6 Band. 245 ; Lewis v. St. 448 ; Carey «. Giles, 9 Ga. 253 ; Macon Webb, 3 Me. 326 ; Durham v. Lewiston, & Western Railroad Co. v. Davis, 13 Ga. 4 Me. 140 ; Lunt's Case, 6 Me. 412 ; Scott 68 ; Franklin Bridge Co. v. Wood, 14 Ga. V. Smart's Ex'rs, 1 Mich. 295; Williams 80; Boston v. Cummins, 16 Ga. 102 ; Van V. Detroit, 2 Mich. 560 ; Tyler w. People, Home v. Dorrance, 2 Dall. 309 ; Calder v. 8 Mich. 320; Weimer v. Bunbury, 30 Bull, 3 Dall. 386; Cooper v. Telfair, 4 Mich. 201 ; Cotton v. Commissioners of Dall. 14 ; Fletcher v. Peck, 6 Cranch, 87. Leon County, 6 Fla. 610 j State v. Robin- i Wheeler v. Wall, 6 Allen, 558 ; Smith son, 1 Kan. 17 ; Santo v. State, 2 Iowa, v. Macon, 20 Ark. 17. 165 ; Morrison v. Springer, 15 Iowa, 304 ; 2 « There are undoubtedly fundamental Stoddart v. Smith, 5 Binn. 355; Moore v. principles of morality and justice which Houston, 3 S.&R. 169; Braddee B.Brown- no legislature is at liberty to disregard, CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 203 It is also a maxim of republican government that local concerns shall be managed in the local districts, which shall choose their own administrative and police officers, and establish for them- selves police regulations ; but this maxim is subject to such ex- ceptions as the legislative power of the State shall see fit to make ; and when made, it must be presumed that the public interest, convenience, and protection are subserved thereby.' The State may interfere to establish new regulations against the will of the local constituency ; and if it shall think proper in any case to assume to itself those powers of local police which should be executed by the people immediately concerned, we must suppose it has been done because the local administration has proved imperfect and inefficient, and a regard to the general well-being has demanded the change. In these cases the maxims which have prevailed in the government address themselves to the wisdom of the legislature, and to adhere to them as far as possible is doubtless to keep in the path of wisdom ; but they do not con- stitute restrictions so as to warrant the other departments in treating the exceptions which ai-e made as unconstitutional.^ but it ia equally undoubted that no court, except in the clearest cases, can properly impute the disregard of those principles to the legislature. . . . This court can know nothing of public policy except from the constitution and the laws, and the course of administration and decision. It has no legislative powers. It cannot amend or modify any legislative acts. It cannot examine questions as expedient or inexpedient, as politic or impolitio> Con- siderations of that sort must in general be addressed to the legislature. Questions of policy th^^re concluded here." Chase, Ch. J., in License Tax Cases, 5 Wall. 462, 469. " All mere questions of expe- diency, and all questions respecting the just operation of the law within the limits prescribed by the constitution, were set- tled by the legislature when it was en- acted." Ladd, J., in Perry v. Keene, 56 N. H. 514, 530. And see remarks of .Ryan, Ch. J., in Attorney-General v. Chi- cago, &c. R. R. Co., 35 Wis. 425, 580. 1 People V. Draper, 15 N. Y. 582. See post, pp. 226-228. 2 In People v. Mahaney, 13 Mich. 481, 500, where the Metropolitan Police Act of Detroit was claimed to be unconstitu- tional on various grounds, the court say : " Besides the specific objections made to the act as opposed to the provisions of the constitution, the counsel for respondent attacks it on ' general principles,' and especially because violating .fundamental principles of our system, — that govern- ments exist by the consent of the gov- erned, and that taxation and representation go together. Thetaxation under the act, it is said, is really in the hands of a police board, a body in the choice of which the people of Detroit have no voice. This argument is one which might be pressed upon the legislative department with great force, if it were true in point of fact. But as the people of Detroit are really represented throughout, the diffi- culty suggested can hardly be regarded as fundamental. They were represented in the legislature which passed the act, and had the same proportionate voice there with the other municipalities in the State, all of which receive from that body their powers of local government, and such only as its wisdom shall prescribe within the constitutional limit. They were represented in that body when the present police board were appointed by it, and the governor, who is hereafter to fill vacancies, will be chosen by the State at large, including their city. There is nothing in the maxim that taxation and representation go together which requires that the body paying the tax shall alone 204 CONSTITtJTIONAL LIMITATIONS. [gS. VII. VI. Nor are the courts at liberty to declare an act void,beca,use in their opinion it is opposed to a spirit supposed to pervade the constitution, but not expressed in words. " When the funda- mental law has not limited, either in terms or by necessary impli- cation, the general powers conferred upon the legislature, we cannot declare a limitation under the notion of having discovered Something in the spirit of the constitution which is not even men- tioned in the instrument." ^ " It is difficult," sayS Mr. Senator Verplanck, " upon any general principles, to limit the omnipotence of the sovereign legislative power by judicial iuterpositioh, except so far as the express words of a written constitution give that authority. There are indeed many dicta and some great authorir ties holding that acts contrary to the first principles of right are void. The principle is unquestionably sound as the governing rule of a legislature in relation to its own acts, or even those of a preceding legislature. It also affords a safe rule of construction for courts, in the interpretation of laws admitting of any doubtful construction, to presume that the legislature could not have in- tended an unequal and unjust operation of its statutes. Such a construction ought neVer to be given to legislative language if it be susceptible of any other more conformable to justice ; but if the words be positive and without ambiguity, I can find no author- ity for a court to vacate or repeal a statute on that ground alone. But it is only in express constitutional provisions, limiting legis- lative power and controlling the temporary will of a majority, by a permanent and paramount lavr, settled by the deliberate wisdom of the nation, that I can find a safe and solid ground for the be corisuUed in its assessment; and if said that the maxims refbrred to have there were, we should find it violated at been entirely disregarded by the legisla- every turo in our system. The State ture in the passage of this act. But as legislature not only has a control in this counsel do not claim that, in so far aS respect over inferior municipalities, which they ]xA.vt been departed from, the consti- it exercises by general laws, but it some- tution has been violated, we cannot, with times finds it necessary to interpose its propriety, be asked to declare the act power in special cases to prevent unjust void on any subh general objection." or burdensome taxation, as well as to And see Wynehatner v. People, 13 N. Y. compel the performance of a clear duty. S78, per Selden, J. ; Benson v. Mayor, &e. The constitution itself, by one of the of Albany, 24 Barb. 248 it seq. ; Baltimore clauses referred to, requires the legis- v. State, 15 Md. 376 ; People ». Draper, 15 lature to exercise its control over the N. Y. 532 ; 'White v. Starnford, St Conn, taxation of municipal corporations, by re- 578. Btricting it to What that body may regard i People v. Fisher, 24 Wend. 215, 220 ; as proper bounds. And municipal bodies State o. Staten, 6 Cold. 238 ; Walker v. are frequently compelled most unwillingly Cincinnati, 21 Ohio St. 14; Stateu. Smith, to levy taxes for the payment of claims, 44 Ohio St. 848; People «. Rucker, 5 Col. by the judgtnents or tnandates of courts 465; Whallon ». lughalli Circ. Judge, 51 in which their representation is quite as Mich. 603 ; Wooten V. State, 6 Sou. Bep. remote as that of the people of Detroit in 39 (Flk.). this police board. It cannot therefore be CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 205 authority of courts of justice to declare void any legislative enact- ment. Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too un- defined either for its own security or the protection of private rights. It is therefore a most gratifying circumstance to the friends of regulated liberty, that in every change in their consti- tutional polity which has yet taken place here, whilst political power has been more widely diffused among the people, stronger and better-defined guards have been given to the rights of prop- erty." And after quoting certain express limitations, he pro- ceeds : " Believing that we are to rely upon these and similar provisions as the best safeguards of our rights, as well as the safest authorities for judicial direction, I cannot bring myself to approve of the power of courts to annul any law solemnly passed, either on an assumed ground of its being contrary to natural equity, or from a broad, loose, and vague interpretation of a con- stitutional provision beyond its natural and obvious sense." ^ The accepted theory upon this subject appears to be this : In every sovereign State there resides an absolute and uncontrolled power of legislation. In Great Britain this complete power rests in the Parliament ; in the American States it resides in the people themselves as an organized body politic. But the people, by creating the Constitution of the United States,- have delegated this power as to certain subjects, and under certain restrictions, to the Congress of the Union ; and that portion they cannot re- sume, except as it may be done through amendment of the national Constitution. For the exercise of the legislative power, subject to this limitation, tliey create, by their State constitution, a legis- lative department upon which they confer it ; and granting it in general terms, they must be understood to grant the whole legis- lative power which they possessed, except so far as at the same time they saw fit to impose restrictions. While, therefore, the Parliament of Britain possesses completely the absolute and un- controlled power of legislation, the legislative bodies of the Amer- ican States possess the same power, except, ^»-««, as it may have been limited by the Constitution of the United States ; and, second, as it may have been limited by the constitution of the State. A legislative act cannot, therefore, be declared void, unless its con- flict with one of these two instruments can be pointed out.* 1 Cochran v. Van Surlay, 20 Wend. People, 13 N. T. 378, per Conatoeh, J. ; 365, 381, 383. See also People v. Galla^ 13 N. Y. 453, per SMen, J. ; 13 N. Y. ghe'r, 4 Mich. 244; Benson v. Mayor, 477, per JbAnson, J. &c. of Albany, 24 Barb. 248 ; Grant v. ^ People v. New York Central Bail- Courter, 24 Barb. 232 ; Wynehamer v. road Co., 34 Barb. 128 ; Gentry v. Grif- 206 CONSTITUTIONAL LIMITATIONS. [CH. VIL It is to be borne in mind, however, that there is a broad dif- ference between the Constitution of the United States and the constitutions of the States as regards the powers which may be exercised under them. The government of the United States is one of enumerated powers ; the governments of the States are possessed of all the general powers of legislation. When a law of Congress is assailed as void, we look in the national Constitu- tion to see if the grant of specified powers is broad enough to em- brace it ; but when a State law is attacked on the same ground, it is presumably valid in any case, and this presumption is a con- clusive one, unless in the Constitution of the United States or of the State we are able to discover that it is prohibited. We look in the Constitution of the United States for grants of legislative power, but in the constitution of the State to ascertain if any limitations have been imposed upon the complete power with which the legislative department of the State was vested in its creation. Congress can pass no laws but such as the Constitution authorizes either expressly or by clear implication; while the State legislature has jurisdiction of all subjects on which its legis- lation is not prohibited.^ " The lawmaking power of the State," it is said in one case, " recognizes no restraints, and is bound by none, except such as are imposed by the constitution. That instru- ment has been aptly termed a legislative act by the people them- selves in their sovereign capacity, and is therefore the paramount law. It's object is not to grant legislative power, but to confine and restrain it. Without the constitutional limitations, the power to make laws would be absolute. These limitations are created and imposed by express words, or arise by necessary implication. The leading feature of the constitution is the separation and distribu- tion of the powers of the government. It takes care to separate the executive, legislative, and judicial powers, and to define their limits. The executive can do no legislative act, nor the legislature any executive act, and neither can exercise judicial authority." ^ It does not follow, however, that in every case the courts, be- fore they can set aside a law as invalid, must be able to find in the constitution some specific inhibition which has been disre- fith, 27 Tex. 461; Danville v. Pace, 25 24 N. Y. 497, 504; People v. Toynbee, 2 Gratt. 1 ; 8. c. 18 Am. Rep. 663; Davis v. Park. Cr. R. 490; State v. Gutierrez, 15 State, 3 Lea, 377. And see the cases La. Ann. 190 ; Walpole v. Elliott, 18 Ind. cited, ante, p. 201, note 3. 258 ; Smith i'. Judge, 17 Cal. 547 ; Com- 1 Sill V. Village of Coming, 15 N. T. monwealth v. Hartman, 17 Pa. St 118 ; 297 ; People v. Supervisors of Orange, Kirhy v. Shaw, 19 Pa. St. 258 ; Weister 27 Barb. 575 ; People v. Gallagher, 4 Mich. v. Hade, 52 Pa. St. 474; Danville i,-. Pace 244 ; Sears v. Cottrell, 6 Mich. 250 ; Peo- 25 Gratt. 1, 9 ; s. c. 18 Am. Rep. 663. pie V. New York Central Railroad Co., ^ Sill v. Coming, 15 N. Y. 207, 303. CH. VII.] DECLAEING STATUTES UNCONSTITUTIONAL. 207 garded, or some express command which has been disobeyed.^ Prohibitions are only important where they are in the nature of exceptions to a general grant of power ; and if the authority to do an act has not been granted by the sovereign to its representa- tive, it cannot be necessary to prohibit its being done. If in one department was vested the whole power of the government, it might be essential for the people, in the instrument delegating this complete authority, to make careful and particular exception of all those cases which it was intended to exclude from its cog- nizance; for without such exception the government might do whatever the people themselves, when met in their sovereign capacity, would have power to do. But when only the legislative power is delegated to one department, and the judicial to another, it is not important that tlie one should be expressly forbidden to try causes, or the other to make laws. The assumption of judi- cial power by the legislature in such a case is unconstitutional, because, though not expressly forbidden, it is nevertheless incon- sistent with the provisions which have conferred upon another department the power the legislature is seeking to exercise.^ And for similar reasons a legislative act which should undertake to make a judge the arbiter in his own controversies would be void, because, though in form a provision for the exercise of judicial power, in substance it would be the creation of an arbitrary and irresponsible authority, neither legislative, executive, nor judicial, and wholly unknown to constitutional government.^ It could not be necessary to forbid the judiciary to render judgment without suffering the party to make defence ; because it is implied in judicial authority that there shall be a hearing before condemna- tion.* Taxation cannot be arbitrary, because its very definition includes apportionment, nor can it be for a purpose not public, because that would be a contradiction in terms.^ Tlie right of local self-government cannot be taken away, because all our con- stitutions assume its continuance as the undoubted right of the people, and as an inseparable incident to republican government.^ 1 A remarkable case of evasion to * Post, pp. 431-433. On this sub- avoid the purpose of the constitution, and ject in general, reference is made to those still keep within its terms, was considered very complete recent works, Bigelow on in People ». Albertson, 56 N. Y. 50. In Estoppel, and Freeman on Judgments. Taylor v. Commissioners of Ross County, * Post, ch. 14. And see Curtis v. 23 Ohio St. 22, the Supreme Court of Whipple, 24 Wis. 350 ; Tyson v. School Ohio found itself under the necessity of Directors, 51 Pa. St. 9; Freeland v. Hast declaring that that which was forbidden ings, 10 Allen, 570 ; Opinions of Judges, by the constitution could no more be done 58 Me. 590; People v. Batchellor, 53 N. indirectly than directly. Y. 128 ; Lowell v. Boston, 111 Mass. 454. 2 Ante, pp. 104-133, and cases cited. « People v. Mayor, &c. of Chicago, 51 » Post, pp. 508-609 and cases cited. 111. 17 ; People v. Hurlbut, 24 Mich. 44; 208 CONSTITUTIONAL LIMITATIONS, [OH. VII. The bills of rights in the American constitutions forbid that parties shall be deprived of property except by the law of the land ; but if the prohibition had been omitted, a legislatiTC en- actment to pass one man's property over tq another would never- theless be Yoid. If the act proceeded upon the assuroptioo that such other person was justly entitled to the estate, and therefore it was transferred, it would be void, because judicial in its nature; and if it proceeded without reasons, it would be equally void, as peither legislative nor judicial, but a mere arbitrary fiat.^ There is no difficulty in saying that any such act, which under pretence of exercising one power is usurping another, i& opposed to the constitution and void. It is assuming a power which the people, if they have not granted it at all, have reserved to themselves. The maxims of Magna Charta and the common law are the in- terpreters of constitutional grants of power, and those acts which by those maxims the several departments of government are forbidden to do cannot be considered within any grant or appor- tionment of power w^hich the people in general terms, have made to those departments. The Parliament of Great Britain, indeed, as possessing the sovereignty of the country, has the power to disregard fundamental principles, and pass g,rbitrary and unjust enactments ; but it cannot do this rightfully, and it has the power to do so simply because there is no written constitution from which its authority springs or on which it depends, and by which the courts can test the validity of its declared will. The rules which confine the discretion of Parliament within the ancient landmarks are rules for the construction of the powers of the American legislatures ; and howevep proper and prudent it may be expressly to prohibit those things which are not understood to be within the proper attributes of legislative power, such prohibi- tion can never be regarded as essential, when the extent of the power apportioned to the legislative department is found upon examination not to be broad enough to cover the obnoxious authority. The absence of such prohibition cannot, by implica- tion, confer power. State V. Denny, 21 N. B. Rep. 274 (Ind,), for strictly private purposes at all, nor See eases post, pp. 227, 282. for public without a just compensation ; ' Bowman v. Middleton, 1 Bay,. 252 ; and that the obligation of contracts can- Wilkinson V, Leland, 2 Pet. 627 j Terrett not be abrogated or essentially impaired. J). Taylor, 9 Cranch, 43 ; Ervine's Ap- These and other vested rights of the citi- pe?.!, 16 Pa. St. 253. " It is now consid- zen are held sacred and inviolable, even ered an universal and fundamental prop- against the plenitude of power of the osition in every well regulated and legislative department." Nelson, J., in properly administered government, wlie- People v. Morris, 13 Wend. 825, 328. See tiher embodied in a constitutional form or Bank of Michigan 164. held that the remainder of the act was ^ Commonwealth v. Hitchings, 5 Gray, complete without this section, and must 482 ; Willard v. People, 5 111. 461 ; Eells therefore be sustained on the rule above V. People, 5 III. 498 ; Robinson v. Bidwell, given. The reasoning of the court by 22 Cal. 379 ; State v. Easterbrook, 3 Nev. lyhich they are brought to this conclusion 173 ;, Hagerstown u. Dechert, 32 Md. is ingenious ; but one cannot avoid feel- 369; People v. Kenney, 96 N. Y. 294. ing, especially after reading the dissent ' Santo V. State, 2 Iowa, 165. But ing opinion of Chief Justice Wright, that perhaps the doctrine of sustaining one by the decision the court gave effect to part of a statute when the other is void an act which the legislature did not de- was carried to an extreme in this case, sign should take effect unless the result A prohibitory liquor law had been passed of the unconstitutional submission to the which was not objectionable on constitu- people was in its favor. See also Weir i-. tional grounds, except that the last sec- Cram, 37 Iowa, 649. For a similar rul- tion provided that " the question of pror ing, see Maize v. State, 4 Ind. 342 ; over- bibiting the sale and manufacture of ruled in Meshmeier v. State, 11 Ind. 482. intoxicating liquor " should be submitted And see State v. Dambaugh, 20 Ohio St. to the electors of the State, and if it 167, where it was held competent to con- should appear " that a majority of the strue a part of an act held to be valid by votes cast as aforesaid, upon said ques- another part adjudged unconstitutional, tion of prohibition, shall be for th9 pro- though the court considered it " quite 212 CONSTITUTIONAL LIMITATIONS. [CH. TIL and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue inde- pendently, then if some parts are unconstitutional, all the pro- Tisions which are thus dependent, conditional, or connected must fall with them.^ It has accordingly been held, where a statute submitted to the voters of a county the question of the removal of their county seat, and one section imposed the forfeiture of certain vested rights in case the vote was against the removal, that this portion of the act being void, the whole must fall, inasmuch as the whole was submitted to the electors collectively, and the threat- ened forfeiture would naturally affect the result of the vote.^ And, where a statute annexed to the city of Eacine certain lands previously in the township of Racine, but contained an express provision that the lands so annexed should be taxed at a different and less rate than other Jands in the city ; the latter provision being held unconstitutional, it was also held that the whole statute must fail, inasmuch as such provision was clearly intended as a compensation for the annexation.^ probable " that if the legislature had sup- posed they were without power to adopt the void part of the act, they would have made an essentially different provision by the other. See also People v. Bull, 46 N. Y. 57, where part of an act was sus- tained wliich probably would not have been adopted by the legislature sep- arately. It must be obvious, in any case where part of an act is set aside as un- constitutional, that it is unsafe to indulge in the same extreme presumptions in support of tlie remainder that are allow- able in support of a complete act when some cause of invalidity is suggested to the whole of it. In the latter case, we know the legislature designed the whole act to have e£fect, and we should sustain it if possible ; in the former, we do not know that the legislature would have been willing that a part of the act should be sustained if the remainder were held void, and there is generally a presump- tion more or less strong to the contrary. While, therefore, in the one case the act should be sustained unless the invalidity is clear, in the other the whole should fall unless it is manifest the portion not opposed to the consti'tution can stand by itself, and that in the legislative intent it was not to be controlled or modified in its construction and effect by the part wliich was void. 1 Warren v. Mayor, &c. of Charles- town, 2 Gray, 84 ; State v. Commissioners of Perry County, 5 Ohio St. 497 ; State V. Pugh, 43 Ohio St. 98; Slauson v. Ra- cine, 13 Wis. 398; Allen County Com- missioners V. Silvers, 22 Ind. 491 ; State V. Denny, 21 N. E. Rep. (Ind.) 274; Eck- hart V. State, 5 W. Va. 515; Allen v. Louisiana, 103 U. S. 80; Tillman v. Cocke, 9 Bax. 429 ; Jones o. Jones, 104 N. Y. 234 ; Meyer «: Berlandi, 39 Minn. 438. Where a statute made the same provision for taxing telegraph messages sent to points within and to points with- out the State, and was void as to the latter, it was held wholly void. Western Union Tel. Co. v. State, 62 Tex. 630. ^ State V. Commissioners of Perry County, 5 Ohio St. 497. And see Jones v. Robbins, 8 Gray, 329; Monroe v. Collins, 17 Ohio St. 666, 684 ; Taylor v. Commis- sioners of Ross County, 23 Ohio St. 22, 84. ' 3 Slauson v. Racine, 13 Wis. 398, fol- lowed in State v. Dousman, 28 Wis. 541. CH. VII. j DECLAKING STATUTES UNCONSTITUTIONAL. 213 And where a statute, in order to obtain a jury of six persons, provided for the summoning of twelve jurors, from whom six were to be chosen and sworn, and under the constitution the jury must consist of twelve, it was held that the provision for reducing the number to six could not be rejected and the statute sustained, inasmuch as this would be giving to it a construction and effect different from that the legislature designed ; and would deprive the parties of the means of obtaining impartial jurors which the statute had intended to give.^ On the other hand, — to illustrate how intimately the valid and invalid portions of a statute may be associated, — a section of the criminal code of Illinois provided that " if any person shall har- bor or secrete any negro, mulatto, or person of color, the same being a slave or servant, owing service or labor to any other persons, whether they reside in this State or in any other State, or Territory, or district, within the limits and under the jurisdic- tion of the United States, or shall in any wise hinder or prevent the lawful owner or owners of such slaves or servants from retaking them in a lawful manner, every person so offending shall be deemed guilty of a misdemeanor," &c., and it was held that, although the latter portion of the section was void within the decision in Prigg v. Pennsylvania,^ yet that the first portion, being a police regulation for the preservation of order in the State, and important to its well-being, and capable of being enforced without reference to the rest, was not affected by the invalidity of the rest.^ A legislative act may be entirely valid as to some classes of cases, and clearly void as to others.* A general law for the pun- ishment of offences, which should endeavor to reach, by its retro- active operation, acts before committed, as well as to prescribe a rule of conduct for the citizen in the future, would be void so far as it was retrospective ; but such invalidity would not affect the operation of the law in regard to the cases which were within the legislative control. A law might be void as violating the obliga- tion of existing contracts, but valid as to all contracts which should be entered into subsequent to its passage, and which there- fore would have no legal force except such as the law itself would allow.^ In any such case the unconstitutional law must operate 1 Campau „. Detroit, 14 Mich. 266. 726. A law forbidding tlie sale of liquors See Commonwealth I). Potts, 79 Pa. St. 164. maj- be void as to imported liquors and 2 16 Pet. 539. ■'^alid as to all others. Tiernan v. Kinker, 8 Willard v. People, 5 111. 461 ; Eells o. 102 U. S. 123 ; State v. Amery, 12 R. I. 64. People 5 111. 498. See Hagerstown v. » Mundy v. Monroe, 1 Mich. 68 ; Car- Dechert, 32 Md. 369. giU "• Po'^er, 1 Mich. 369. In People v. * Moore v. New Orleans, 32 La. Ann. Eochester, 50 N. Y. 525, certain commis- 214 CONSTITUTIONAL IIMITATIONS. [CH. Til. as far as it can,i and it will not be held invalid on the objection of a party whose interests are not affected by it in a manner which the constitution forbids. If there are any exceptions to this rule, they must be of cases only where it is evident, from a contemplation of the statute and of the purpose to be accomplished by it, that it would not have been passed at all, except as an entirety, and that the general purpose of the legislature will be defeated if it shall be held valid as to some cases and void as to others. Waiving a Constitutional Objection. There are cases where a law in its application to a particular case must be sustained, because the party who makes objection has, by prior action, precluded himself from being heard against it.^ Where a constitutional provision is designed for the protec- tion solely of the property rights of the citizen, it is competent for him to waive the protection, and to consent to such action as would be invalid if taken against his will. On this ground it has been held that an act appropriating the private property of one person for the private purposes of another, on compensation made, was valid if he whose property was taken assented thereto ; and that he did assent and waive the constitutional privilege, if he received the compensation awarded, or brought an action to recover it.^ So if an act providing for the appropriation of prop- erty for a public use shall authorize more to be taken than the use requires, although such act would be void without the owner's assent, yet with it all objection on the ground of unconstitution- ality is removed.* And where parties were authorized by statute to erect a dam across a river, provided they should first execute sioners were appointed to take for a city under which a grand jufy is made up, hall either lands belonging to the city or by pleading in bar to the indictment, lands of individuals. The act made no United States v. Gale, 109 U. S. 65. An provision for compensation. The cora- officer who lias acted and received money missioners Elected to take lands belonging under an act cannot contest its constitu- to the city. Held, that the act was not tionality. People v. Bunker, 70 Gal. 212. wholly void for the omission to provide * Baker v. Brkmim, 6 Hill, 47. So, if compensation in case the lands of Individ- one has started the machinery to set go- uals had been selected. ing a local improvement act. Dewhurst 1 Baker w. Bramftn, 6 Hill, 47 ; Re- v. Allegheny, 95 Pa. St. 437. gents of University v. Williams, 9 Gill & * Embury v. Conner, 3 N. T. 511. And J. 305, s. c. 31 Am. Dec. 72; Re Middle- see He^Wftrd v. Mayor, &c of New York, town, 82 N. Y. 196. The case of Sadler 8 Barb. 486 ; Mobile & Ohio Railroad V. Langham, 34 Ala. 311, appears to be Co. v. State, 29 Ala. 573 ; Detmold ». opposed to this principle, but it also ap- Drake, 46 N. Y. 318. For a waiver in pears to us to be based upon cases which tax cases resting on a similar principle, are not applicable. see Motz v. Detroit, 18 Mich. 495 ; Rick- ' One waives right to object to law etts v. iSpraker, 77 Ind. 371. CH. Vn.] DECLAKING STATUTES UNCONSTITUTIONAL. 215 a bond to the people conditioned to pay such damages as each and every person might sustain in consequence of the erection of the dam, the damages to be assessed by a justice of the peace, and the dam was erected and damages assessed as provided by the statute, it was held, in an action on the bond to recover those damages, that the party erecting the dam and who had received the benefit of the statute, was precluded by his action from con- testing its validity, and could not insist upon his right to a common-law trial by jury.^ In these and the like cases the statute must be read with an implied proviso that the party to be affected shall assent thereto ; and such consent removes all obstacle, and lets the statute in to operate the same as if it had in terms contained the condition.^ Under the terms of the statutes which exempt property from forced sale on execution, to a specified amount or value, it is sometimes necessary that the debtor, or some one in his behalf, shall appear and make selection or otherwise participate in the setting off of that to which 'he is entitled ; and where this is the case, the exemption cannot be forced upon him if he declines or neglects to claim it.^ In Penn- sylvania and Alabama it has been decided that a party may, by executory agreement entered into at the time of contractijig a debt, and as a part of the contract, waive his rights under the exemption laws and preclude himself from claiming them as against judgments obtained for such debt ; * but in other States it is held, on what seems to be the better reason, that, as the exemption is granted on grounds of general policy, an executory agreement to waive it must be deemed contrary to the policy of the law, and for that reason void.^ In criminal cases the doctrine 1 People V. Murray, 5 Hill, 468. See 31 Am. Rep. 328 ; Gilman v. WiUiams, 7 Xee V. TillotBOD, 24 Wend. 837. Wis. 829. She need not assent as to 2 Embury v. Conner, 3 N. Y. 511. And exemption of stock in trade. Charpen- see Matter of Albany St., 11 Wend. 149 ; tier v. Bresnalian, 62 Mich. 360. Chamberlainp.Lyell, 3 Mich. 448; Beech- * Case v. Dunmore, 23 Pa. St. 93; er y. Baldy, 7 Midi. 488 ; Mobile & Ohio Bowman v. Smiley, 31 Pa. St. 225; Bailroad Co. v. State, 29 Ala. 573 ; Det- Sbelly's Appeal, 36 Pa. St. 873 ; O'Nail mold V. Drake, 46 N. Y. 318 ; Haskell u. v. Craig, 56 Pa. St. 161 ; Thomas's Ap- Jfew Bedford, 108 Mass. 208 ; Wanser v. peal, 69 Pa. St. 120 ; Bibb v. Janney, 45 Atkinson, 43 N. J, 571. Ala. 829; Brown v. Leitch, 60 Ala. 813; 8 See Barton v. Brown, 68 CaJ. 11; 8. c. 31 Am. Rep. 42; Neely v. Henry, 63 Butler V. Sliiver, 79 Ga. 172. In some Ala. 261. And see Hoisington v. Huf^ States the officer must make the seleo- 24 Kan. 379. tion when the debtor fails to do so, and ' Maxwell :;. Reed, 7 Wis. 582 ; Knee- in some the debtor, if a married man, tie v. Newcomb, 22 N. Y. 249 ; Recht ». is precluded from waiving the privilegB Kelly, 82 111. 147 ; s. c. 25 Am. Rep. 801; except with the consent of his wife, Moxley v. Ragan, 10 Bush, 166; s. c. 19 given in writing. See Denny v. White, Am. Rep. 61 ; Denny v. White, 2 Cold. 2 Cold. 283 ; Ross v. Lister, 14 Tex. 469; 283 ; Branch v. Tomlinson, 77 N. C. 388; Vanderbnrst ». Bacon, 38 Mich. 669 ; B. c. Carter's Admr. v. Carter, 20 Fla. 658; 216 CONSTITUTIONAL LIMITATIONS. [CH. VIL that ^ constitutional privilege may be waived must be true to a very limited extent only. A party may consent to waive rights of property, but the trial and punishment for public offences are not within the province of individual consent or agreement.^ Judicial Doubts on Constitutional Questions. It has been said by an eminent jurist, that when courts are called upon to pronounce the invalidity of an act of legislation, passed with all the forms and ceremonies requisite to give it the force of law, they will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.^ A reasonable doubt must be solved in favor of the legislative action, and the act be sustained.^ " The question whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubt- ful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful Cleghorn v. Greeson, 77 Ga. 843. A woman cannot by ante-nuptial agreement release the special allowance made to her as widow by statute; it being against public policy. Phelps v. Phelps, 72 111. 645. 1 See post, 390. And as to the waiver of the right to jury trial in civil cases, post, pp. 505, 506. 2 Wellington, Petitioner, 16 Pick. 87, per Shaw, Ch. J. Alexander a. People, 7 Col. 155; Crowley v. State, 11 Oreg. 512. A law will be upheld unless its un- constitutionality is so clear " as to leave no doubt on the subject." Kelly v. Meeks, 87 Mo. 396 ; Robinson v. Schenck, 102 Ind. .307. If an act may be valid or not according to the circumstances, a court would be bound to presume that such circumstances existed as would ren- der it valid. Talbot v. Hudson, 16 Gray, 417. 3 Cooper V. Telfair, 4 Dall. 14; Dow V. Norris, 4 N. H. 16 ; Flint River Steam- boat Co. V. Foster, 5 Ga. 194 ; Carey v. Giles, 9 Ga. 253 ; Macon & Western Rail- road Co. I: Davis, 13 Ga. 68; Franklin Bridge Co. o. Wood, 14 Ga. 80 ; Kendall V. Kingston, 6 Mass. 524; Foster v. Essex Bank, 16 Mass. 245 ; Norwich v. Count}'- Commissioners of Hampshire, 13 Pick. 60 ; Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 210 ; Rich ». Flanders, 39 N. H. 304 ; Eason v. State, 11 Ark. 481 ; Hedley v. Commissioners of Franklin Co., 4 Blackf. 116 ; Stocking v. State, 7 Ind. 326; La Fayette o. Jenners, 10 Ind. 74; Ex parte McCoUum, 1 Cow. 550 ; Contant V. People, 11 Wend. 511 ; Clark v. People, 26 Wend. 559 ; Morris v. People, 3 Denio, 376; N. Y., &c. R. B. Co. v. Van Horn, 57 N. Y. 473 ; Baltimore v. State, 15 Md. 376 ; Cotton v. Commissioners of Leon Co., 6 Fla. 610 ; Cheney v. Jones, 14 Fla. 587 ; Lane v. Dorman, 4 111. 238 ; s. c. 36 Am. Dec. 543 ; Newland v. Marsh, 19 111. 376 ; Farmers' and Mechanics' Bank v. Smith, 3 S. & R. 63 ; Weister v. Hade, 52 Pa. St. 474; Sears v. Cottrell, 5 Mich. 251; Tyler v. People, 8 Mich. 320 ; Allen County Commissioners v. Silvers, 22 Ind. 491 ; State V. Robinson, 1 Kan. 17; Eyre v. Jacob, 14 Gratl. 422 ; Gormley v. Taylor, 44 Ga. 76 ; State v. Cape Girardeau, &c. R. R. Co., 48 Mo. 468; Oleson v. Railroad Co., 36 Wis. 383 ; Newsom v. Cocke, 44 Miss. 352 ; Slack v. Jacob, 8 W. Va. 612 ; Commonwealth v. Moore, 25 Gratt. 951. CH. VII.] DEOLAEING STATUTES UNCONSTITUTIONAL. 217 of the solemn obligation which that station imposes ; but it is not ou slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitu- tion and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other." ^ Mr. Justice Washington gives a reason for this rule, which has been repeatedly recognized in other cases which we have cited. After expressing the opinion that the particular question there presented, and which regarded the constitutionality of a State law, was involved in difficulty and doubt, he says : " But if I could rest my opinion in favor of the constitutionality of the law on which the question arises, on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt." ^ The constitutionality of a law, then, is to be presumed, because the legislature, which was first required to pass upon the question, acting, as they must be deemed to have acted, with integrity, and with a just desire to keep within the restrictions laid by the con- stitution upon their action, have adjudged that it is so. They are a co-ordinate department of the government with the judi- ciary, invested with very high and responsible duties, as to some of which their acts are not subject to judicial scrutiny, and they legislate under the solemnity of an official oath, which it is not to be supposed they will disregard. It must, therefore, be sup- posed that their own doubts of the constitutionality of their action have been deliberately solved in its favor, so that the courts may with some confidence repose upon their conclusion, as one based upon their best judgment. For although it is plain, upon the authorities, that the courts should sustain legislative action when not clearly satisfied of its invalidity, it is equally plain in reason that the legislature should abstain from adopting such action if not fully assured of their authority to do so. Eespect for the instrument under which they exercise their power should impel the legislature in every case to solve their doubts in its favor, and it is only because we are to presume thev do so, that courts are 1 Fletcher v. Peck, 6 Cranch, 87, 128, 7 Am. Dec. 216 ; Kellogg v. State Treas- per Marshall, Ch. J. urer, 44 Vt. 356, 359 ; Slack v. Jacob, 8 2 Ogden V. Saunders, 12 Wheat. 213. W. Va. 612. See Adams v. Howe, 14 Masa. 840 ; 8. c. 21g CONSTITUTIONAL LIMITATIONS. [CH. VIL warranted in giving weight in any case to their decision. If it were understood that legislators refrained from exercising their judgment, or that, in cases of doubt, they allowed themselves to lean in favor of the action they desired to accomplish, the foun- dation for the cases we have cited would be altogether taken away.i As to what the doubt shall be upon which the court is to act, we conceive that it can make no difference whether it springs from an endeavor to arrive at the true interpretation of the con- stitution, or from a consideration of the law after the meaning of the constitution has been judicially determined. It has sometimes been supposed that it was the duty of the court, first, to interpret the constitution, placing upon it a construction that must remain unvarying, and then test the law in question by it ; and that any other rule would lead to differing judicial decisions, if the legisla- ture should put one interpretation upon the constitution at one time and a different one at another. But the decided cases do not sanction this rule,^ and the difficulty suggested is rather imaginr ary than real, since it is but reasonable to expect that, where a construction has once been placed upon a constitutional provision, it will be followed afterwards, even though its original adoption may have sprung from deference to legislative action rather than from settled convictions in the judicial mind.^ The duty of the court to uphold a statute when the conflict between it and the constitution is not clear, and the implication which must always exist that no violation has been intended by the legislature, may require it in some cases, where the meaning of the constitution is not in doubt, to lean in favor of such a con- struction of the statute as might not at first view seem most ob- vious and natural. For as a conflict between the statute and the constitution is not, to be implied, it would seem to follow, where the meaning of the constitution is clear, that the court, if possible, must give the statute such a construction as will enable it to have effect. This is only sa,ying, in another form of words, that the court must construe the statute in accordance with the legislative intent ; since it is always to be presumed the legislature designed the statute to take effect, and not to be a nullity. The rule upon this subject is thus stated by the Supreme Court of Illinois : " Whenever an act of the legislature can be so con- strued and applied as to avoid conflict with the constitution and 1 See upon this subject what is said in York, 5 Sandf. 10 ; Clark v. People, 26 Osburn v. Staley, 5 W. Va. 85; Tate v. "Wend. 599; Baltimore v. State, 15 Md. Bell, 4 Yerg. 202; g. o. 26 Am. Dec. 221. 376. 2 Sun Mutual Insurance Co. v. New » People v. Blodgett, 13 Mich. 127. CH. VII.] DEOLAEIITG STATUTES UNCONSTITUTIONAL. 219 give it the force of law, srach construction will be adopted by the courts. Therefore, acts of the legislature, in terms retrospective, and which, literally interpreted, would invalidate and destroy vested rights, are upheld by giving them prospective operation only ; for, applied to, and operating upon, future acts and transac- tions only, they are rules of property under and subject to which the citizen acquires property rights, and are obnoxious to no con- stitutional limitation ; but as retroactive laws, they reach to and destroy existing rights, through force of the legislative will, with- out a hearing or judgment of law. So will acts of the legislature, having elements of limitation, and capable of being so applied and administered, although the words are broad enough to, and do, literally read, strike at the right itself, be construed to limit and control the remedy ; for as such they are valid, but as weap- ons destructive of vested rights they are void ; and such force only will be given the acts as the legislature could impart to them."i ' The Supreme Court of New Hampshire, a similar question being involved, recognizing their obligation " so to construe every act of the legislature as to make it consistent, if it be possible, - with the provisions of the constitution," proceed to the examina- tion of a statute by the same rule, " without stopping to inquire what construction might be warranted by the natural import of the language used." ^ And it is said by Harris, J., delivering the opinion of the ma- jority of the Court of Appeals of New York : " A legislative act is not to be declared void upon a mere conflict of interpretation between the legislative and the judicial power. Before proceed- ing to annul, by judicial sentence, what has been enacted by the law-making power, it should clearly appear that the act cannot be supported -by any reasonable intendment or allowable presump- tion." ^ And this after all is only the application of the familiar rule, that in the exposition of a statute it is the duty of the court to seek to ascertain and carry out the intention of the legislature in its enactment, and to give full effect to such intention ; and they are bound so to construe the statute, if practicable, as to 1 Newland v. Marsh, 19 III. 376, 384. « People v. Superrisors of Orange, 17 See also Bigelow v. West Wisconsin R. R. N. Y. 235, 241. See also Boisdere v. Citi- Co., 27 Wis. 478; Attorney-General o. zens' Bank, 9 La. 506; s. c. 29 Am. Uec. Eau Claire, 37 Wis. 400 ; Coleman ». 453. It is the duty of the court to adopt Tesler, 1 Wash. Ter. 591 ; Singer Mfg. a construction of a statute which, with- Co. V. keCollock, 24 Fed. Rep. 667. out doing violence to the fair meaning 2 Dow V. Norris, 4 N. H. 16, 18. See of words, brings it into harmony with Dubuque v. Illinois Cent. R. R. Co., 39 the constitution. Grenada Co. Super- Iowa 56. visors v. Brogden, 112 U. S. 261. 220 CONSTITUTIONAL LIMITATIONS. [CH. VII. give it force and validity, rather than to avoid it, or render it nugatory.^ The rule is not different when the question is whether any portion of a statute is void, than when the whole is assailed. The excess of power, if there is any, is the same in either case, and is not to he applied in any instance. And on this ground it has been held that where the repealing clause in an unconstitutional statute repeals all inconsistent acts, the repealing clause is to stand and have effect, notwithstanding the invalidity of the rest.^ But other cases hold that such repeal- ing clause is to be understood as designed to repeal all conflicting provisions, in order that those of the new statute can have effect ; and that if the statute is iavalid, nothing can conflict with it, and therefore nothing is repealed.^ Great caution is necessary in some cases, or the rule which was designed to ascertain and effectuate the legislative intent will be pressed to the extreme of giving effect to part of a statute exclusively, when the legislative intent was that the pai't should not stand except as a component part of the whole. Inquiry into Legislative Motives. From what examination has been given to this subject, it ap- pears that whether a statute is constitutional or not is always a question of power ; that is, a question whether the legislature in the particular case, in respect to the subject-matter of the act, the manner in which its object is to be accomplished, and the mode of enacting it, has kept within the constitutional .limits and observed the constitutional conditions. In any case in which this question is answered in the affirmative, the courts are not at lib- erty to inquire into the proper exercise of the power. They must assume that legislative discretion has been properly exercised.* If evidence was required, it must be supposed that it was before the legislature when the act was passed ; ^ and if any special find- ing was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equiv^ 1 Clarke »., Rochester, 24 Barb. 446. 14 Mich. 276; Childs i). Shower, 18 Iowa, See Marshall v. Grimes, 41 Miss. 27; 261; Harbeck v. New York, 10 Bosw. MorreU w-Fickle, 3 Lea, 79. 366 ; People v. Fleming, 7 Col. 230 ; Port- '■i Meshmeier v. State, 11 Ind. 482 ; Ely land v. Schmidt, 13 Oreg. 17. ». Thompson, 3 A. K. Marsh..70. * People u. Lawrence, 36 Barb. 177; ' Shepardson v. Milwaukee & Beloit People v. New York Central Railroad Co., Railroad Co., 6 Wis. 605 ; Siate v. Judge 34 Barb. 123 ; Baltimore v. State, 15 Md. of County Court, 11 Wis. 50 ; Tims v. 376 ; Goddin v. Crump, 8 Leigh, 154. State, 26 Ala. 165 ; Sullivan v. Adams, 8 '« De Camp v. Eveland, 19 Barb. 81 ; Gray, 476 ; Devoy v. Mayor, &c. of New Lusher v. Scites, 4 W. Va. 11. York, 85 Barb. 264 ; Campau v. Detroit, CH. VII.] DECLAEING STATUTES UNCONSTITUTIONAL. 221 alent to such finding.^ And although it has sometimes been urged at the bar that the courts ought to inquire into the motives of the legislature where fraud and corruption were alleged, and annul their action if the allegation were established, the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon.^ The reasons are the 1 Johnson v. Joliet & Chicago Rail- road Co., 23 111. 202. The Constitution of Illinois provided that "corporations not possessing banking powers or privileges may be formed under general laws, but shall not be created by special acts, except for municipal purposes, and in cases where, in the judgment of the General Assembly, tlie objects of the corporation cannot be attained under general laws." A special charter being passed without any legis- lative declaration that its object could not be attained under a general law, the Su- preme Court sustained it, but placed their decision mainly on the ground that the clause had been wholly disregarded, " and it would now produce far-spread ruin to declare such acts unconstitutional and void." It is very clearly intimated in the opinion, that the legislative practice, and this decision sustaining it, did violence to the intent of the constitution. A provi- sion in the Constitution of Indiana that "no act shall take effect until the same shall have been published and circulated in the several counties of this State, by authority, except in case of emergency," adds the words, " which emergency shall be declared in the preamble, or in the body of the law ; " thus clearly making the legislative declaration necessary. Carpenter v. Montgomery, 7 Blackf . 415 ; Mark v. State, 15 Ind. 98 ; Hendrickson V. Hendrickson, 7 Ind. 13. 2 Sunbury & Erie Railroad Co. v. Cooper, 33 Pa. St. 278 ; JSx parte New- man, 9 Cal. 502 ; Baltimore v. State, 15 Md. 376; Johnson v. Higgins, 3 Met. (Ky.) 566. " The courts cannot impute to the legislature any other than public motives for their acts." People v. Draper, 15 N. Y. 532, 545, per Denio, Ch. J. " We are not made judges of the motives of the legislature, and the court will not usurp the inquisitorial office of inquiring into the bmafideg of that body in discharging its duties." ShanMand, J., in the same case, p. 555. " The powers of the three depart- ments are not merely equal; they are exclusive in respect to the duties assigned to each. Tliey are absolutely indepen- dent of each other. It is now proposed that one of the three powers shall insti- tute an inquiry into the conduct of an- other department, and form an issue to try by what motives the legislature were gov- erned in the enactment of a law. If this may be done, we may also inquire by what motives the executive is induced to approve a bill or withhold his approval, and in case of withholding it corruptly, by our mandate compel its approval. To institute tlie proposed inquiry would be a direct attack upon the independence of the legislature, and a usurpation of power subversive of the constitution." Wright V. Defrees, 8 Ind. 298, 802, per Gookins, J. " We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the constitu- tion." Per Chase, Ch. J., in Ex parte, McCardle, 7 Wall. 506, 514. The same doctrine is restated by Mr. Justice Hunt, in Doyle v. Continental Ins. Co., 94 U. S. 585. Courts cannot inquire into legis- lative motives "except as they may be disclosed on the face of the acts or be inferrible from their operation considered with reference to the condition of the country and existing legislation." Soon Hing V. Crowley, 113 U. S. 703. The rule applies to the legislation of munici- palities. Brown v. Cape Girardeau, 90 Mo. 877. And see McCuUoch v. State, 11 Ind. 424 ; Bradshaw v. Omaha, 1 Neb. 16 ; Lyon v. Morris, 15 Ga. 480 ; People vJ Flagg, 46 N. Y. 401 ; Slack v. Jacob, 8 W. Va. 612, 635; State v. Cardozo, 5 S. C. 297 ; Humboldt County v. Churchill County Comm'rs, 6 Nev. 30 ; Flint, &c. Plank Road Co. v. WoodhuU, 25 Mich. 99; State V. Fagan, 22 La. Ann. 545 ; State V. Hays, 49 Mo. 604 ; Luehrman v. Tax- ing District, 2 Lea, 425; Kountze v. Omaha, 5 Dill. 443. In Jones v. Jones, 12 Fa, St. 350, the general principle was recognized, and it was decided not to be competent to declare a legislative divorce 222 CONSTITUTIONAL LIMITATIONS. [CH. VIL same here as those which preclude an inquiry into the motives of the governor in the exercise of a discretion vested in him exclu- sively. He is responsible for his acts in such a case, not to the courts, but to the people.^ Consequences if a Statute is Void. When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it ; contracts which depend upon it for their consideration are void ; it consti- tutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the deci- sion was.made.2 And what is true of an act void in toto is true also as to any.part of an act which is found to be unconstitutional, and which, consequently, is to be regarded as having never, at any time, been possessed of any legal force. void for fraud. It was nevertheless held competent to annul it, on the ground that it had been granted (as shown by parol evidence) for a cause which gave the le- gislature no jurisdiction. The legislature was regarded as being for the purpose a, court of limited jurisdiction. In Attor- ney-General V. Supervisors of Lake Co., 33 Mich. 289, it ia decided that when supervisors and people, having full au- thority over the subject, have acted upon the question of removal of a county seat, no question of motive can be gone into to invalidate their action. 1 Attorney -General v. Brown, 1 Wis. 513 ; Wright v. Defrees, 8 Ind. 298. ^ Strong V. Daniel, 6 Ind. 348 ; Sum- ner V. Beeler, 50 Ind. 341; Astrom >,. Hammond, 3 McLean, 107 ; Woolsey v. Commercial Bank, 6 McLean, 142 ; De- troit V. Martin, 34 Mich. 170; Kelly v. Bemis, 4 Gray, 83 ; Hover v. Barkhoof , 44 N. Y. 113; Clark v. Miller, 54 N. Y. 528 ; Meagher v. Storey Co., 5 Nev. 244 ; Ex parte Rosenblatt, 19 Nev. 489. In People V. Salomon, 54 III. 40) a ministerial officer was severely censured for pre- suming to disregard a law as unconstitu- tional. The court found the law to- be valid, but they could not have found otherwise without justifying the officer. In Texas it has been held that an uncon- stitutional act has the force of law for the protection of officers acting under it. Sessums v. Botts, 34 Tex. 33-5. In Iowa, a magistrate who had issued a warrant, and the officer who had served it, for the destruction of liquors, under a eity ordi- nance which the city had no power to adopt, were held to be protected, not- withstanding this want of power in the city. Henke v. McCord, 55 Iowa, 378. The warrant seems to have been consid- ered " fair on its face ; " but can process ever be fair on its face when it commands that which is illegal ? If a decision. ad- judging a statute unconstitutional is af- terwards overruled, the statute is to be considered as having been in force for the whole period. Pierce v. Pierce, 46 Ind. 86. CH. Vm.] THE GEADES OF MUNICIPAL GOVERNMENT. 223 CHAPTER VIII. THE SEVEKAL GRADES OP MUNICIPAL GOVERNMENT. In the examination of American constitutional law, we shall not fail to notice the care taken and the means adopted to bring the agencies by which power is to be exercised as near as possible to the subjects upon which the power is to operate. In contradistinction to those governments where power is concentrated in one man, or one or more bodies of _men, whose ■ supervision and active control extends to all the objects of gov- ernment within the territorial limits of the State, the American system is one of complete decentralization, the primary and vital idea of which is, that local affairs shall be managed by local authorities, and general affairs only by the central authority. It was under the control of this idea that a national constitution was formed, .under which the States, while yielding to the na- tional government complete and exclusive jurisdiction over ex- ternal affairs, conferred upon it such powers only, in regard to matters of internal regulation, as seemed to be essential to na- tional union, strength, and harmony, and without which the purpose in organizing the national authority might have been defeated. It is this, also, that impels the several States, as if by common arrangement, to subdivide their territory into counties, towns, road and school districts,^ and to confer powers of 1 The general rules respecting schools III. 612; s. c. 34 Am. Hep. 131; and are suiBciently alike in the several States so .may normal schools and colleges : to justify bringing together in this place Po^yell v. Board of Education, 97 111. the leading authorities concerning them. 375 ; Briggs v. Johnson Co., 4 Dill. 148 ; To what degree the legislature shall pro- music may be taught : Bellmeyer v. Tide for the education of the people at the School District, 44 Iowa, 564 ; State v. cost of the State or of its municipalities, Webber, 108 Ind. 31. " Common schools " is a question which, except as regulated mean schools open to all, rather than those by the constitution, addresses itself to the of a definite grade : Roach v. Board, &c., legislative judgment exclusively. Com- 77 Mo. 484; and the State may confer monwealth v. Hartman, 17 Pa. St. 118. upon the governing boards such authority It has been sometimes contended that it as it shall deem wise, but subject to alter- was incompetent to go beyond making ation at all times, and to be taken away provision for general education in the at the discretion of the State. Bawson common branches of learning; but this v. Spencer, 113 Mass. 40. Many of the notion is exploded. High schools may Stateoonstitutionsprovidecommon-sohool be established : Stuart v. School District, funds, and some provide a fund for higher 80 Mich. 69 ; Richards v. Raymond, 92 education with certain restrictions : what- 224 CONSTITUTIONAL LIMITATIONS. [CH. vin. local legislation upon the people of each subdivision, and also to incorporate cities, boroughs, and villages wherever the ever these are they must be observed. People V. Board of Education, 13 Barb. 400 ; People v. Allen, 42 N. Y. 404 ; Hal- bert V. Sparks, 9 Bush, 259; Collins v. Henderson, 11 Bush, 74; State «. Gra- ham, 26 La. Ann. 440; State v. Board of Liquidation, 29 La. Ann. 77 ; Sun Mut. Ins. Co. V. Board of Liquidation, 81 La. Ann. 175; Littlewort v. Davis, 50 Miss. 403; Weir v. Day, 35 Ohio St. 143; Otken v. Lamkin, 56 Miss. 758. Although it is customary to leave the control of schools in the hands of the school authorities, it is held competent for the State to contract with a publisher to supply all the schools of the State with text-books of a uniform character and price. Curryer v. Merrill, 25 Minn. 1, 8. c. 33 Am. Rep. 450 ; Bancroft v. Thayer, 5 Sawy. 502 ; People v. Board of Educa- tion, 55 Cal. 331. The governing school boards derive all their authority from the statute, and can exercise no powers ex- cept those expressly granted, and those which result by necessary implication from the grant. Peers v. Board of Educa- tion, 72 111. 508 ; Clark v. School Direc- tors, 78 111. 474 ; Adams v. State, 82 111. 132; Stevenson v. School Directors, 87 111. 255; Manning w. Van Buren, 28 Iowa, 332 ; Monticello Bank v. CoflBn's Grove, 51 Iowa, 350; State v. Board of Educar tlon, 35 Ohio St. 368 ; State v. Mayor, &;c., 7 Neb. 267 ; Gehling v. School District, 10 Neb. 239. The board, in exercising its authority, must act as such, in regular meetings convened for the purpose ; it is not sufficient that the members severally give their assent to what is done. State I'. Leonard, 3 Tenn. Ch. 117; State i>. Tiedemann, 69 Mo. 515; Smith v. Town- ship Board, 58 Mo. 297 ; Dennison School District u. Padden, 89 Pa. St. 395; Hazen v. Lerche, 47 Mich. 626. But see Crane v. School District, 61 Mich. 299 ; Russell V. State, 18 Neb. 68. Illegal or unauthorized action by the board cannot be ratified by it, and the fact that the district has the jjeneflt of what is done will not amount to a ratification by the district. School District v. Fogelman, 76 111. 189 ; Johnson u. School District, 67 Mo. 319 ; Board of Education v. Thomp- son, 33 Ohio St. 321 ; Gehling v. School District, 10 Neb. 239; Gibson o. School District, 36 Mich. 404 ; Wells v. People, 71 111. 532. The general control of a school building is In the board, which may maintain all proper suits for posses- sion. Barber v. Trustees of Schools, 51 111. 396 ; Alderman v. School Directors, 91 111. 179. The board must not enter into contracts with its own members, as these would be void. Pickett v. School District, 25 Wis. 551 ; Hewitt v. Normal School District, 94 111. 528 ; Flint, &e. K. R. Co. V. Dewey, 14 Mich. 477. The board is entrusted with the authority to employ teachers, and to remove them under the rules prescribed by statute. Crawfords- ville W.Hays, 42 Ind. 200; School Dis- trict V. Colvin, 10 Kan. 283 ; Directors, &c. V. Burton, 26 Ohio St. 421 ; Jones v. Nebraska, 1 Neb. 176 ; Bays v. State, 6 Neb. 167; Parker v. School District, 5 Lea, 505. If a teacher is rightfully dis- missed, he cannot recover for services performed thereafter, though he takes possession of the school-house and contin- , ues to teach. Pierce v. Beck, 61 Ga. 413. But if he is wrongfully dismissed, or if he leaves school because of the unjustifiable action of the board, he may recover for his whole time. Swing it. School Direc- tors, 2 111. App. 458 ; Scott v. School Dis- trict, 46 Vt. 452. See McCutchen v. Windsor, 55 Mo. 149. Contracts for a stated time are subject to the observance of public holidays, and the teacher is en- titled to these without deduction from his salary. School District v. Gage, 39 Mich. 484. The school board may make the contract for teaching extend beyond their own term of office : Wilson v. School District, 36 Conn. 280; Wait v. Ray, 67 N. Y. 36 ; provided they act in good faith and do not unreasonably forestall the ac- tion of their successors. Loomis v. Cole- man, 51 Mo. 21 ; Stevenson v. School District, 87 111. 255; Hewitt u. School District, 94 111. 528 ; School Directors v. Hart, 4 111. App. 224. See Tappan v. School District, 44 Mich. 500 ; Athearn v. Independent District, 33 Iowa, 105. The board has general authority to establish for the school such rules and regulations as it shall deem wise. Donahoe v. Rich- ards, 38 Me. 376 ; Spiller v. Woburn, 12 CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 225 circumstances and needs of a dense population seem to require other regulations than those which are needful for the rural districts. The system is one which almost seems a part of the very nature of the race to which we belong. A similar subdivision of the realm for the purposes of municipal government has existed, in England from the earliest ages ; ^ and in America, the first set- tlers, as if instinctively, adopted it in their frame of government, and no other has ever supplanted it, or even found advocates. In most of the colonies the central power created and provided for the organization of the towns ;2 in one at least the towns preceded and created the central authority ; » but in all, the final Allen, 127 ; Board of Education v. Minor, 23 Ohio St. 211. The rules may be en- forced by suspensions and expulsions if necessary. Hodgkins v. Rockport, 105 Mass. 475 ; Murphy v. Directors, 30 Iowa, 429 ; Burdick v. Baboock, 31 Iowa, 562 ; Board of Education v. Thompson, ,33 Ohio St. 321; Eulison v. Post, 79 III. 567; Sewell v. Board of Education, 29 Ohio St. 89. But this power is subject to the general principle that the by-laws of all corporations must be reasonable ; if a rule is unreasonable, and a pupil is pun- ished for refusal to submit to it, an action will lie. Roe v. Deming, 21 Ohio St. 666. See Ward v. Flood, 48 Cal. 36; State v. Vanderbilt, 18 N. E. Rep. 266 (Ind.); Fertich v. Michener, 111 Ind. 472; State V. Board of Education, 63 Wis. 234; Holman v. School Trustees, 43 N. W. Rep. 996 (Mich.). The board and the teacher have no control of pupils after they have returned to their homes : Dritt V. Snodgrass, 66 Mo. 286; State v. Os- borne, 24 Mo. App. 309 ; otherwise while they are on their way home before pa- rental control is resumed. Deskins v. Gose, 85 Mo. 485; Hutton v. State, 23 Tex. App. 386. It is held in Wisconsin and Illinois that parents have a right to e.Ycuse their children from taking any particular study in a course, and that teachers cannot refuse to give instruction to the pupils thus excused. Morrow v. Wood, 35 Wis. 59; s. c. 17 Am. Rep. 471 ; Rulison v. Post, 79 III. 567 ; Lake View School Trustees v. People, 87 III. 303. As to the power to discriminate between colored and other children in schools, see post, 481, note. As to devot- ing school funds and school buildings to re- X5 ligions purposes, see post, 575, note. That towns, &c., may hold in trust moneys given for education, see Piper v. Moulton, 72 Me. 155 ; Hatheway v. Sackett, 32 Mich. 97. > Crabbe's History of English Law, c. 2; 1 Bl. Com. 114; Hallam's Middle Ages, c. 8, pt. 1 ; 2 Kent, 278; Vauglian's Revolutions in English History, b. 2, c. 8 ; Frothingham's' Rise of the Republic, 14, 15. The early local institutions of Eng- land are presented with great fulness and erudition in the Constitutional History of Professor Stubbs. 2 For an interesting history of the le- gislation in Connecticut on this subject, see Webster v. Harwinton, 32 Conn. 131. In New Hampshire, see Bow v. Aliens- town, 34 N. H. 351. The learned note to Commonwealth v. Roxbury, 9 Gray, 503, will give similar information concerning the organization and authority of towns in the Massachusetts provinces. And see People v. Hurlbut, 24 Mich. 98 ; s. c. 9 Am. Rep. 103; Shumway v. Bennett, 29 Mich. 461. Mr. Elliott well says: " The prime strength of New England and of the whole republic was and is in the municipal governments and in the homes." And he adds, that among the earliest things decided in Massachusetts was, " that trivial things should be ended in towns" (1635). Elliott's New Eng- land, Vol. I. p. 182. 2 Rhode Island ; see Arnold's History, c. 7. It is remarked by this author that, when the charter of Rhode Island was suspended to bring the colony under the dominion of Andros, " the American system of town governments which necessity had compelled Rhode Island to initiate fifty years before, became the means of pre- 226 CONSTITUTIONAL LIMITATIONS. [OH. VIII. result •was substantially the same, that towns, villages, boroughs, cities, and counties exercised the powers of local government, and the Colony or State the powers of a more general nature.^ The several State constitutions have been framed with this system in view, and the delegations of power which they make, and the express and implied restraints which they impose there- upon, can only be correctly understood and construed by keeping in view its present existence and anticipated continuance. There are few of the general rules of constitutional law that are not more or less affected by the fact that the powers of government, ' instead of being concentrated in one body of men, are carefully distributed, with a view to being exercised with intelligence, economy, and facility, and as far as possible by the persons most directly and immediately interested. It has already been seen that the legislature cannot delegate its power to make laws ; but fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims which regard local government, that the right of the legislature, in the entire absence of authorization or prohibition, to create towns and other inferior municipal organizations, and to confer upon them the powers of local government, and especially of local taxation and police regulation usual with such corporatioi^ would always pass unchallenged. The legislature in these cases is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to local boards and serving the individual liberty of the elti- is made by the State, it must be enforced zen when that of the State or Colony was by the town. A uniform system of in- crushed." Arnold, Vol. I. p. 487. struction is organized all over the country, 1 " The townships," says De Tocque- and every town is bound to establish the Tille, " are only subordinate to the State schools which the law ordains. . . . Strict in those interests which I shall term as this obligation is, the government at social, as tliey are common to all the the State imposes it in principle only, citizens. They are independent in all and in its performance the township as- that concerns themselves, and among the sumes all its independent rights. Thus inhabitants of New England I believe taxes are voted by the State, but they that not a man is to be found who would are assessed and collected by the town- acknowledge that the State has any right ship ; the existence of a school is obliga- te interfere in their local interests. The tory, but the township builds, pays, and towns of New England buy and sell, pros- superintends it. In France, the State ecnte or are indicted, augmenfor diminish collector receives the local imposts ; in their rates, without the slightest opposi- America, the town collector receives the tion on the part of the administrative au- taxes of the State. Thus the French thority of the State. They are bound, government lends its agents to the com- however, to comply with the demands of mnne ; in America, the township is the the community. If a State is in need of agent of the government. This fact alone money, a town can neither give nor with- shows the extent of the differences which hold the supplies. If a State projects a exist between the two nations." Demoo- road, the township cannot refuse to let it racy in America, c. 5. See Frothing- cross its territory ; if a police regulation ham's Rise of the Republic, 14-28. CH. Vni.] THE GRADES OF MUNICIPAL GOVEENMENT. 227 officers is not understood to belong properly to the State ; and when it interferes, as sometimes it must, to restrain and control the local action, there should be reasons of State policy or dangers of local abuse to warrant the interposition.^ The people of the municipalities, however, do not define for themselves their own rights, privileges, and powers, nor is there any common law which draws a definite line of distinction be- tween the powers which may be exercised by the State, and those which must be left to the local governments.^ The municipalities must look to the State for such charters of government as the legislature shall see fit to provide ; and they cannot prescribe for themselves the details, though they have a right to expect that those charters will be granted with a recognition of the general principles with which we are familiar. The charter, or the general law under which they exercise their powers, is their con- stitution, in which they must be able to show authority for the acts they assume to perform. They have no inherent jurisdiction to make laws or adopt regulations of government ; they are gov- ernments of enumerated powers, acting by a delegated authority ; so that while the State legislature may exercise such powers of government coming within a proper designation of legislative power as are not expressly or impliedly prohibited, the local 1 " It seems to be generally conceded 507 ; Bliss v. Kraus, 16 Ohio St. 55 ; Tri- that powers of local legislation may be gaily v. Memphis, 6 Cold. 382 ; Durach's granted to cities, towns, and other muni- Appeal, 62 Pa. St. 491 ; State u. Wilcox, cipal corporations. And it would require 45 Mo. 458 ; Jones v. Richmond, 18 Gratt. strong reasons to satisfy us that it could 517 ; State v. O'Neill, 24 Wis. 149 ; Brad- have been the design of -the framers of ley v. M'Atee, 7 Bush, 667 ; s. c. 3 Am. our constitution to take from the legisla- Rep. 809 ; Burekholter v. M'Connellsville, ture a power which has been exercised in 20 Ohio St. 308 ; People v. Hurlbut, 24 Europe by governments of all classes Mich. 44 ; s. c. 9 Am. Kep. 103 ; Mills v. from the earliest history, and the exercise Charleton, 29 Wis. 400; Commonwealth of which has probably done more to pro- v. Coyningham, 65 Pa. St. 76 ; People v. mote civilization tlian all other causes Kelpey, 84 Cal. 470 ; Tugman v. Chicago, combined;* which has been constantly 78 111. 405; -Manly ». Raleigh, 4 Jones exercised in every part of our country Eq. 370; Stone y.Charlestown, 114 Mass. from its earliest settlement, and which 214 ; Hayden v. Goodnow, 89 Conn. 164 ; has raised up among us many of our Goldthwaite v. Montgomery, 50 Ala. 486 ; most valuable institutions." State u. StanfiU u. Court of Co. Rev., 80 Ala. 287 ; Noyes, 30 N. H. 279, 292, per Bell, J. See Robinson v. Schencik, 102 Ind. 307 ; Cross also Tanner v. Trustees of Albion, 5 Hill, v. Hopkins, 6 W. Va. 823. The propriety 121; Dalby n. Wolf, 14 Iowa, 228; State of establishing a mimicipality is not a V. Simonds, 3 Mo. 414 ; McKee v. McKee, judicial question. People v. Riverside, 8 B. Monr. 433; Smith v. Levinus, 8 N. 70 Cal. 461. It is not an unlawful delega- Y. 472 ; People v. Draper, 15 N. Y. 582 ; tion of power to give a City the right to Burgess v. Pue, 2 Gill, 11 ; New Orleans extend its bounds. Kelly v. Meeks, 87 V. Turpin, 13 La. Ann. 56 ; Gilkeson v. Mo. 396 See cases, post, p. 282. The Frederick Justices, 13 Gratt. 577 ; " As to the common law affecting these Mayor, &c. of New York v. Ryan, 2 E. D. corporate existences, and the effect of Smith, 868 ; St. Ijouis v. Russell, 9 Mo. usage, see 2 Kent, 278, 279. 228 CONSTITUTIONAL LIMITATIONS. [CH. Tin. authorities can exercise those only which are expressly or im- pliedly conferred, and subject to such regulations or restrictions as are annexed to the grant.^ The creation of municipal corporations, and the conferring upon them of certain powers and subjecting them to correspond- ing duties, does not deprive the legislature of the State of that general control over their citizens which was before possessed. It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, overrule their legislative action whenever it is deemed unwise, impolitic, or unjust, and even abolish them al- together in the legislative discretion, and substitute those which are different.^ The rights and franchises of such a corporation, 1 stetson ». Kempton, 13 Mass. 272; Willard v. Killlngworth, 8 Conn. 247 ; Abendroth v. Greenwich, 29 Conn. 356 ; Baldwin v. North Branford, 82 Conn. 47 ; Webster v. Harwinton, 32 Conn. 131 ; Douglass V. Placerville, 18 Cal. 643 ; Lack- land V. Northern Missouri Railroad Co., 31 Mo. 180 ; Mays v. Cincinnati, 1 Ohio St. 268 ; Frost v. Belmont, 6 Allen, 152 ; Hess V. Pegg, 7 Nev. 23 ; Ould i;. Rich- mond, 23 Gratt. 464; Youngblpod v. Sex- ton, 32 Mich. 406 ; 8. c. 20 Am. Rep. 655. 2 St. Louis V. Allen, 13 Mo. 400 ; Coles V. Madison Co., Breese, 115; Richland County V. Lawrence County, 12 111. 1; Trustees of Schools v. Tatman, 13 111.27 ; Robertson v. Rockford, 21 111. 451 ; Peo- ple V. Power, 25 lU. 187 ; St. Louis a. Russell, 9 Mo. 507 ; State i>. Cowan, 29 Mo. 330 ; McKim v. Odom, 3 Bland, 407 ; Granby v. Thurston, 23 Conn. 416 ; Har- rison Justices V. Holland, 3 Gratt. 247 ; Brighton v. Wilkinson, 2 Allen, 27 ; Sloan V. State, 8 Blackf. 361; Mills v. Wil- liams, 11 Ired. 558; Langworthy w. Du- buque, 16 Iowa, 271 ; Weeks v. Milwaukee, 10 Wis. 242 ; State ■;. Branin, 23 N. J. 484 ; Patterson v. Society, &c., 24, N. J. 385 ; Atchison t>. Bartholow, 4 Kan. 124 ; City of St. Louis v. Cafferata, 24 Mo. 94 ; People V. Draper, 15 N. Y. 532 ; Hawkins V. Commonwealth, 76 Pa. St. 15 ; People V. Tweed, 63 N. Y. 202 ; Barnes v. Dis- trict of Columbia, 91 TJ. S. 540; Laramie Co. V. Albany Co., 92 U. S. 807 ; Aspin- wall V. Commissioners, &c., 22 How. 364 ; Howard v. MoDiamid, 26 Ark. 100 ; Phil- adelphia w. Fox, 64 Pa. St. 169 j Brad- shaw V. Omaha, 1 Neb. 16; Kuhn v. Board of Education, 4 W. Va. 499 ; Sin- ton V. Ashbury, 41 Cal. 526; Hess v. Pegg, 7 Nev. 23 ; Hagerstown v. Schuer, 37 Md. 180; San Francisco ». Canavan, 42 Cal. 541; State ». Jennings, 27 Ark. 419 ; Division of Howard Co., 15 Kan. 194 ; Martin v. Dix, 52 Miss. 53 ; GofE v. Frederick, 44 Md. 67; Blessing v. Gal- veston, 42 Tex. 641 ; Wiley v. Bluffion, 111 Ind. 152 ; True v. Davis, 22 N. B. Rep. 410 (111.). The legislature may in its discretion recall to itself and exercise so much of such powers as it has con- ferred upon municipal corporations as is not secured to them by the constitution. People V. Pinkney, 32 N. T. 377. The subject was considered ^t length in Mer- iwether V. Garrett, 102 U. S. 472, in which was considered the effect of the legislation which abolished the city gov- ernment of Memphis; and in Amy v. Selma, 77 Ala. 103. The creditors of a county cannot prevent the legislature re- ducing its limits, notwithstanding their security may be diminished thereby. Wade V. Richmond, 18 Gratt. 583 ; Luerh- man v. Taxing District, 2 Lea, 425. Com- pare Milner v. Pensacola, 2 Woods, 632 ; Galesburg v. Hawkinson, 75 III. 152; Rader v. Road District, 36 N. J. 273; Wallace v. Sharon Trustees, 84 N. C. 164. A charter may not be repealed to the injury of creditors already entitled to payment. Morris v. State, 62 Tex. 728. This power is not defeated or affected by the circumstance that the municipal cor- poration was by its charter made the trustee of a charity ; and in such case, if CH. Vin.] THE GRADES OF MUNICIPAL GOVERNMENT. 229 being granted for the purposes of government, can never become such vested rights as against the State that they cannot be taken away ; nor does the charter constitute a contract in the sense of the constitutional provision which prohibits the obligation of con- tracts being violated.^ Restraints on the legislative power of control must be found in the constitution of the State, or they must rest alone in the legislative discretion.^ If the legislative the corporation is abolished, the Court of Chancery may be empowered and di- rected by the repealing act to appoint a new trustee to take charge of the prop- erty and execute the trust. Montpelier V. East Montpelier, 29 Vt. 12. And see Harrison v. Bridgeton, 16 Mass. 16; Montpelier Academy v. George, 14 La. Ann. 406; Reynolds v. Baldwin, 1 La. Ann. 162 ; Police Jury v. Shrereport, 6 La. Ann. 666; Philadelphia v. Fox, 64 Pa. St. 169; Weymouth & Braintree Fire Commissioners v. County Commis- sioners, 108 Mass. 142. As to extent of power to hold property in trust, see Hatheway v. Sackett, 32 Mich. 97. But neither the Identity of a corporation, nor its right to take property by devise, is destroyed by a change in its name, or enlargement of its area, or an increase in the number of its corporators. Girard v. Philadelphia, 7 Wall. 1. Changing a borough into a city does not of itself abolish or affect the existing borough ordinances. Trustees of Erie Academy V. City of Erie, 31 Pa. St. 615. Nor vill it affect the indebtedness of the cor- poration, which will continue to be its indebtedness under its new organization. Olney v. Harvey, 50 111. 453. Property brought within a city by the exercise of legislative discretion is liable for existing municipal indebtedness. Maddrey v. Cox, 11 S. W. Kep. 541 (Tex.). A general statute, containing a clause repealing all statutes contrary to its provisions, does not repeal a clause in a municipal charter on the same subject. State v. Branin, 23 N. J. 484. 1 This principle was recognized by the several judges in Dartmouth College v. Woodward, 4 Wheat. 618, and in Meri- wether V. Garrett, 102 U. S. 472. And see People ». Morris, 13 Wend. 326; St. Louis V. Russell, 9 Mo. 507 ; Montpelier V. East Montpelier, 29 Vt. 12 ; Trustees of Schools V. Tatman, 18 III. 27 ; Brigh- ton V. Wilkinson, 2 Allen, 27 ; Reynolds V. Baldwin, 1 La. Ann. 162 ; Police Jury V. Shreveport, 5 La. Ann. 665 ; Mt. Car- mel V. Wabash County, 50 111. 69 ; Lake View V. Rose Hill Cemetery, 70 111. 191 ; Zitske V. Goldberg, 38 Wis. 216 ; Weeks V. Gilmanton, 60 N. H. 600 ; Dillon, Mun. Corp. §§ 24, 30, 37. * See ante, p. 47 ; post, pp. 282-287. " Where a corporation is tlie mere crea- ture of legislative will, established for the general good and endowed by the State alone, the legislature may, at plea- sure, modify the law by which it wag created. For in that case there would be but one party affected, — the government itself, — and therefore not a contract within the meaning of the constitution. The trustees of such a corporation would he the mere mandatories of the State, having no personal interest involved, and could not complain of any law that might abridge or destroy their agency." Mont- pelier Academy v. George, 14 La. Ann. 406. In Trustees of Schools v. Tatman, 13 111. 27, 30, the court say: "Public corporations are but parts of the machin- ery employed in carrying on the affairs of the State ; and they are subject to be changed, modified, or destroyed, as the exigencies of the public may demand. The State may exercise a general super- intendence and control over them and their rights and effects, so that their property is not diverted from the uses and objects for which it was given or pur- chased." And see State v. Miller, 65 Mo. 60. As to the effect of legislation abol- ishing a corporation upon its property and debts, see Mount Pleasant v. Beck- with, 100 U. S. 514 ; Meriwether v. Gar- rett, 102 U. S. 472 ; Rawson v. Spencer, 113 Mass. 40. Where a municipal cor- poration is dissolved and a new one for the same general purposes is created con- taining the same population and property in substance, to which the corporate property passes without consideration, the debts of the old fall upon the new 230 CONSTITUTIONAL LIMITATIONS. [CH. YIIL action in these cases operates injuriously to the municipalities or to individuals, the remedy is not with the courts. The courts have no power to interfere, and the people must be looked to, to right through the ballot-box all these wrongs,^ This is the municipality, and with them the power to tax for their payment. Mobile v. Watson, 116 U. S. 289 ; Amy v. Selma, 77 Ala. 103. Upon the division of towns and counties, &c. the legislature may ap- portion the dehts as it sees fit. People ir^ Supervisors, 94 N. Y. 263 ; Clay Co- v. Chickasaw Co., 64 Miss. 534 ; Dare Co. V. Currituck Co., 95 N. C. 189; Morrow Co. V. Hendryx, 14 Oreg. 397. It is a lawful exercise of legislative authority upon such divisien, to confer a part of the corporate property of the old corpora- tion upon the new, and to direct the old body to pay it over to the new. Harri- son u. Bridgetot), 16 Mass. 16; Salem Turnpike v. Essex Co., 100 Mass. 282 ; Whitney v. Stow, 111 Mass. 368 ; Stone V. Charlestown, 114 Mass. 214 ; Sedgwick Co. V. Bunker, 14 Kan. 498 ; Portwood v. Montgomery, 52 Miss. 523 ; Bristol v. New Chester, 3 N. H. 524; Milwaukee Town B. Milwaukee City, 12 Wis. 93; Marshall Co. Court v. Calloway Co. Court, 3 Bush, 93. But it seems that an apportionment of property can only be made at the time of the division. Wind- ham V. Portland, 4 Mass. 384; Hamp- shire V. Franklin, 16 Mass. 76. See Richland v. Lawrence, 12 111. 1 ; Bowdoin- ham V. Richmond, 6 Me. 112. In the latter case it was held that the apportion- ment of debts between an old town and one created from it was in the nature of i, contract ; and it was not in the power of the legislature afterwards to release the new township from payment of its share as thus determined. But the case of Layton m. New Orleans, 12 La. Ann. 515, h contra, See also Borougli of Dun- more's Appeal, 52 Pa. St. 374, and School District v. Board of Educatidn, 73 Mo. 627, which in principle seem to accord With the Louisiana case. In the absence of such legislation each part is entitled to the property falling within it, and to any equitable share of the moneys of the township. Towle B.Brown, 110 Ind. 66. In Burns v. Clarion County, 62 Pa. St. 422, it was held the legislature had the power to open a settlement made by county audi- tors with the county treasurer, and to compel them to settle with him on prin- ciples of equity. See further, Cambridge V. Lexington, 17 Pick. 222; Attorney- General V. Cambridge, 16 Gray, 247; Clark V. Caimbridge, &c. Bridge Proprie- tors, 104 Mass. 236. The legislature ha» power to lay out a road through several towns, and apportion the expense between them. Waterville v. Kennebeck County, 59 Me. 80 ; Comraonwealth v. Newbnry- port, 103 Mass. 129. And it may change the law and redistribute the burden after- wards, if from a change of circumstances or other reasons it is deemed just and proper to do so. Scituate v. Weymouth, 108 Mass. 128, and cases cited. A statute abolishing school distriets is not void on grounds lik« the following : that it takes the property of the districts without com- pensation ; that the taxes imposed will not be proportional and reasonable, or that contracts will be affected. Bawson V. Spencer, 113 Mass. 40. See Weymouth &c. Fire District v. County Commissioners, 108 Mass. 142. I " The correction of these abuses ia as readily attained at the ballot-box as it would be by subjecting it to judicial re- vision. A citizen or a number of citizens may be subtracted from a county free from debt, having no taxation fcr county purposes, and added to an adjacent one, whose debts are heavy, and whose taxing powers are exercised to the utmost ex- tent allowed by law, and this, too, with- out consulting their wishes. It is done every day. Perhaps a majority of the people thus annexed to an adjacent of thrown into a new county by the division of an old one may have petitioned the le- gislature for this change ; but this is no relief to the outvoted minority, or the individual who deems himself oppressed and vexed by the change. Must we, then, to prevent such occasional hard- ships, deny the power entirely ? " It must be borne in mind that these corporations, whether established over cities, counties, or townships { where such incorporated subdivisions exist), are never intrusted and can never be intrusted with any legislative power inconsistent or con- CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 231 general rule ; and the exceptions to it are not numerous, and will be indicated hereafter. Powers of Puhlie Corporations. The powers of these corporations are either express or implied. The former are those which the legislative act under which they exist confers in express terms ; the latter are such as are neces- sary in order to carry into effect those expressly granted, and which must, therefore, be presumed to have been within the intention of the legislative grant.^ Certain powers are also inci- dental to corporations, and will be possessed unless expressly or by implication prohibited. Of these an English writer has said : " A municipal corporation has at common law few powers beyond those of electing, governing, and removing its members, and reg- ulating its franchises and property. The power of its governing officers can only extend to the administration of the by-laws and other ordinances by which the body is regulated." * But without being expressly empowered so to do, they may sue and be sued ; may have a common seal; may purchase and hold lands and other property for corporate purposes, and convey the same; may make by-laws whenever necessary to accomplish the design of the incorporation, and enforce the same by penalties ; and may enter into contracts to effectuate the corporate purposes.^ Except as to these incidental powers, which need not be, though they usually are, mentioned in the charter, the charter itself, or the general law under which they exist, is the measure of the authority to be exercised. And the general disposition of the courts in this country has been to confine municipalities within the limits that a strict construction of the grants of powers in their charters will assign to them ; thus applying sub- flicting with the general laws of the land, County, 3 Iowa, 311 ; La Fayette v. Cox, or derogatory to those rights, either of 5Ind. 38; Clark w.Des Moines, 19 Iowa, person or property, which the constitution 199; State u. Morristown, 33 N. J. 57; and the general laws guarantee. They Beaty v. Knowler, 4 Pet. 152 ; Mills v. are strictly subordinate to the general Gleason, 11 Wis. 470. In this last case, laws, and merely created to carry out the it was held that these corporations had purposes ofthose laws with more certainty implied power to borrow money for cor- and efficiency. They may be and some- porate purposes. And see also Ketchum times are intrusted with powers which v. Buffalo, 14 N. Y. 356. properly appertain to private corpora- '^ Willcock on Municipal Corporations, tions, and in such matters their power as tit. 769. mere municipal corporations ceases." * Angell & Ames on Corp. §§ 111, 239 ; City of St. Louis v. Allen, 13 Mo. 400. 2 Kyd on Corp: 102; State v. Ferguson, 1 2 Kent, 278, note ; ftalstead v. Mayor, 33 N. H. 424. See Dillon, Mun. Corp., &c. of New York, 3 N. Y. 480 ; Hodges v. for an examination, in the light of the Buffalo, 2 Denio, 110 ; New London v. authorities, of the several powers here Brainard, 22 Conn. 552 ; State v. Fergu- mentioned, son, 33 N. H. 424; McMillan v. Lee 232 CONSTITUTIONAL LIMITATIONS. [CH. VIIL stantially the same rule that is applied to charters of private incorporation.^ The reasonable presumption is that the State 1 Under a city charter which author- ized the common council to appoint assessors for the purpose of awarding damages to those through whose property a street might be opened, and to assess such damages on the property benefited, it was decided that the council were not empowered to levy a tax to pay for the other expenses of opening the street. Eeed v. Toledo, 18 Ohio, 161. So a power to enact by-laws and ordinances to abate and remove nuisances will not authorize the passing of an ordinance to prevent nuisances, or to impose penalties for the creation thereof. Rochester v. Collins, 12 Barb. 559. A power to impose penalties for obstructions to streets would not author- ize the like penalties for encroachments upon streets, where, under the general laws of the State, the offences are recog- nized as different and distinct. Grand Rapids V. Hughes, 16 Mich. 64. Authority to levy a tax on real and personal estate would not warrant an income tax, espe- cially when such a tax is unusual in the State. Mayor of Savannah v. Hartridge, 8 Ga. 23. It will appear, therefore, that powers near akin to those expressly con- ferred are not, for that reason, to be taken by implication. And see Commonwealth V. Erie & N. E. Railroad Co., 27 Pa. St. 339. This rule has often been applied where authority has been asserted on be- half of a municipal corporation to loan its credit to corporations formed to con- struct works of internal improvement. See La Fayette u. Cox, 5 Ind. 38; Cle- burne II. Gulf, &c. Ry. Co., 66 Tex. 457. The ordinary powers of a city do not give it authority to grant a street rail- way franchise. Eichels v. Evansville Street Railway Co., 78 Ind. 261. Power to buy land for public purposes does not cover a purchase for an agricultural so- ciety. Eufaula v. McNab, 67 Ala. 588. Power to make health regulations does not permit the erection of a public slaugh- ter-house. Huesing v. Rock Island, 21 N. E. Rep. 558 (111.). Power to contract for a water-supply does not authorize grant- ing an exclusive privilege for twenty-five years. Brenham v. Brenham Water Co , 67 Tex. 542. Power to regulate wharves does not cover creating a harbor. Speng- ler V. Trowbridge, 62 Miss. 46. A power to pass ordinances to prohibit the sale or giving away of intoxicating liquors in certain special cases is an implied exclusion of the power to prohibit the sale or giving away in other cases. State V. Ferguson, 33 M. B. 424. In Dunham V. Rochester, 6 Cow. 462, 466, it is said : "For all the purposes of jurisdiction, cor- porations are like the inferior courts, and must show the power given them in every case. If this be wanting, their proceed- ings must be holden void whenever they come in question, even collaterally ; for they are not judicial and subject to direct review on certiorari. 2 Kyd on Corp. 104- 107." The prescribed method of exer- cising a power must be strictly followed. Des Moines B. Gilchrist, 67 Iowa, 210. The power " to enact ordinances necessary for government " does not authorize the grant of the franchise of a toll-bridge. Williams v. Davidson, 43 Tex. 1. Like power coupled with that to regulate streets and business does not allow regu- lation of telephone charges. St. Louis V. Bell Telephone Co., 96 Mo. 623. The power to create indebtedness does not by implication carry with it a power to tax for its payment. Jeffries v. Law- rence, 42 Iowa, 498. The approving vote of the citizens cannot give an authority the law has not conferred. McPherson V. Foster, 43 Iowa, 48. See Hackettstown V. Swackhamer, 37 N. J. 191. In Nashville II. Ray, 19 Wall. 468, four of the eight, justices of the Supreme Court denied the power of municipal corporations to borrow money or issue securities unless expressly authorized. Says Bradley, J. : " Such a power does not belong to a municipal corporation as an incident of its creation. To be possessed it must be conferred by legislation, either express or implied. It does not belong, as a mere matter of course, to local government to raise loans. Such governments are not created for any such purpose. Their powers are pre- scribed by their charters, and those char- ters provide the means for exercising the powers; and the creation of specific means excludes others." See Waxahachie v. Brown, 67 Tex. 519. Compare Bank of Chillicothe v. Chillioothe, 7 Ohio, 354; CH. VIII.] THE GRADES 01 MUNICIPAL GOVEENMENT. 233 has granted in clear and unmistakable terms all it has designed to grant at all. It must follow that, if in any case a party assumes to deal with a corporation on the supposition that it possesses powers which it does not, or to contract in any other manner than is per- mitted by the charter, he will not be allowed, even though he may have complied with the undertaking on his part, to maintain a suit against the corporation based upon its unauthorized action. Even where a party is induced to enter upon work for a corpora- tion by the false representations of corporate officers in regard to the existence of facts on which by law the power of the corpo- ration to enter upon the work depends, these false representations cannot have the effect to give a power which in the particular case was wanting, or to validate a contract otherwise void, and therefore can afford no ground of action against the corporation ; but every party contracting with it must take notice of any want of authority which the public records would show.^ This is the Clark V. School District, 3 R. 1. 199 ; State V. Common Council of Madison, 7 Wis. 688 ; Mills v. Gleason, 11 Wis. 470 ; Ham- lin i;. Meadville, 6 Neb. 227; State u. Babcock, 22 Neb. 614. But power to confine patients with infectious diseases covers renting a pest-house : Anderson V. O'Conner, 98 Ind. 168 ; and paying nurses : Labrie v. Manchester, "59 N. H. 120; Bae v. Flint, 61 Mich. 526. Such corporation has implied power to take as trustee for indigent inhabitants : Estate of Bobinson, 68 Cal. 620; and to defend its marshal sued for false imprisonment. CuUen V. Carthage, 103 Ind. 196; Boper V. Laurinburg, 90 N. C. 427. See also IfTashville «. Bay, 19 Wall. 468 ; Milhau v. Sharp, 17.Barb. 485, 28 Barb. 228, and 27 N. Y. 611; Douglass a. Placerville, 18 Cal. 643 ; Mount Pleasant v. Breeze, 11 Iowa, .399 ; Hooper v. Emery, 14 Me. 375; Mayor, &c. of Macon v. Macon & West- ern B. B. Co., 7 Ga. 221; Hopple v. Brown, 13 Ohio St. 311 ; Lackland v. Northern Missouri Bailroad Co., 31 Mo. 180 ; Smith v. Morse, 2 Cal. 624 ; Bennett i>. Borough of Birmingham, 81 Pa. St. 15 ; Barley's App. 103 Pa. St. 273 ; Tuck- er V. Virginia City, 4 Nev. 20; Leaven- worth V. Norton, 1 Kan. 432; Kyle v. Malin, 8 Ind. 34 ; Johnson v. Philadel- phia, 60 Pa. St. 445 ; Kniper v. Louis- ville, 7 Bush, 699 ; Johnston v. Louisville, 11 Bush, 627; Williams v. Davidson, 43 Tex. 1; Burritt v. New Haven, 42 Conn. 174 ; Logan ». Pyne, 43 Iowa, 524 ; Field V. Des Moines, 39 Iowa, 575 ; Vance V. Little Bock, 80 Ark. 486 ; English v. Chicot County, 26 Ark. 454; PuUen v. Raleigh, 68 N. C. 461 ; Chisholm v. Mont- gomery, 2 Woods, 584; Burmeister v. Howard, 1 Wash. Ter. 207; Bell v. Plattville, 71 Wis. 139; Murphy v. Jack- sonville, 18 Fla. 318. 1 The common council of Williams- burg had power to open, regulate, grade, and pave streets, but only upon petition signed by one-tliird of the persons own- ing lands within the assessment limits. A party entered into a contract with the corporation for improving a street, upon the false representations of the council that such a petition had been presented. Held, that the provision of law being public, and all the proceedings leading to a determination by the council to make a particular improvement being matters of record, all persons were charge- able with notice of the law and such pro- ceedings ; and that, notwithstanding the false representations, no action would lie against the city for work done under the contract. Swift v. Williamsburg, 24 Barb. 427. " If the plaintiff can recover on the state of facts he has stated in his complaint, the restrictions and limitations which the legislature sought to impose upon the powers of the common council will go for nothing. And yet these pro- visions are matters of substance, and were 234 CONSTITUTIONAL LIMITATIONS. [oh. VIIL general rule, and the cases of unauthorized action which may bind the corporation are exceptional, and will be referred to further on. designed to be of some service to the constituents of the common council. They were intended to protect the owners of lands and the taxpayers of the city, as well against the frauds and impositions of the contractors who might be employed to make these local improvements, as against the illegal acts of the common council themselves in employing the contractors. But if the plaintiff can recover in this ac- tion, of what value or effect are all these safeguards ? If the common council de- sire to make a local improvement, which the persons to be benefited thereby, and to be assessed therefor, are unwilling to have made, the consent of the owners may be wholly dispensed with, according to the plaintiff's theory. The common council have only to represent that the proper petition has been presented and the proper proceedings have been taken, to warrant the improvement. They then enter into the contract. The improve- ment is made. Those other safeguards for an assessment of the expenses and for reviewing the proceedings may or may not be taken. But when the work is com- pleted and is to be paid for, it is found that the common council have no author- ity to lay any assessment or collect a dol- lar from the property benefited by the im- provement. The contractor then brings his action, and recovers from the city the damages he has sustained by the failure of the city to pay him the contract price. The ground of his action is the falsity of the representations made to him. But the truth or falsity of such representa- tions might have been ascertained by the party with the use of the most ordinary care and diligence. The existence of the proper petition, and the taking of the ne- cessary initiatory steps to warrant the improvement, were doubtless referred to and recited in the contract made with the plaintiff. And he thus became again directly chargeable with notice of the contents of all these papers. It is obvi- ous that the restrictions and limitations imposed by the law cannot thus be evaded. The consent of the parties interested in such improvements cannot be dispensed with ; the responsibility, which the con- ditions precedent created by the statute impose, cannot be thrown off in this manner. For the efiect of doing so is to shift entirely the burden of making these local improvements, to relieve those on whom the law sought to impose the ex- pense, and to throw it on others who are not liable either in law or morals." So, where the charter of Detroit pro- vided that no public work should be contracted for or commenced until an assessment had been levied to defray the expense, and that no such work should be paid or contracted to be paid for, ex- cept out of the proceeds of the tax thus levied, it was held that the city corporar tion had no power to make itself respon- sible for the price of any public, work, and that such work could only be paid for by funds actually in the hands of the city treasurer, provided for the spe- cific purpose. Goodrich v. Detroit, 12 Mich. 279. But if the city receives the fund and misappropriates it, it will be liable. Lansing v. Van Gorder, 24 Mich. 456. And that even if a contract is tdtra vires a city is liable for value of work done under it, provided it receives the benefit of it, see Schipper v. Aurora, 22 N. E. Rep. 878 (Ind.), and cases cited. Parties dealing with the agents or offi- cers of municipal corporations must, at their own peril, take notice of the limits of the powers both of the municipal corporation, and of those assuming to act on its behalf. State v. Kirkley, 29 Md. 85 ; Gould ». Sterling, 23 N. T. 456; Clark v. Des Moines, 19 Iowa, 199; Veeder"». Lima, 19 Wis. 28t); Bryan t>. Page, 51 Tex. 532 ; 8. o. 32 Am. Rep. 637 ; Tainter v. Woroesterr 123 Mass. 311 ; s. c. 25 Am. Rep. 90 ; Barton v. Swep- ston, 44 Ark. 437 ; Thomas v. Richmond, 12 Wall. 849; East Oakland k. Skin- ner, 94 U. S. 255; Dillon, Mun. Corp. § 381. But a bona fide holder of muni- cipal obligations has a right to rely upon the truth of their recitals, if they appear to be warranted by the legislation under which they are issued. Coloma v. Eaves, 92 U. S. 484; Walnut v. Wade, 103 U. S. 683; Pana v. Bowler, 107 TJ. S. 529; New Providence v. Halsey, 117 U. S. CH. Vin.J THE GRADES OF MUNIOIPA.L GOVERNMENT. 235 Municipal corporations exercise tiie autiiority conferred upon them, by law through votes of the corporators at public meetings, and through officers and agents duly elected or chosen. The cor- porators are the resident electors, who, under the general laws of the State, may vote at the ordinary elections, though sometimes, in special cases, the franchise has been conferred upon taxpay- ers exclusively. A meeting of corporators for any purpose of legal action must be regularly convened in such manner or at such time as may have been prescribed by law. If the corpora- tors were to come together at any time without legal permission and assume to act for the corporation, their action would be of no legal force or validity whatever. The State permits them to wield a part of the governmental authority of the State, but only on the conditions which the law has prescribed, and one of these is that it shall be exercised in an orderly manner, at meetings as- sembled upon due notice and conducted according to legal formsj in order that there may be opportunity for reflection, consulta- tion, and deliberation.^ The notice may be either general, and given by the law itself, or it may be special, and given by some corporate officer or agent. Annual meetings are commonly pro- vided for by general law, which names a time, and perhaps a place for the purpose. Of this general law every corporator must take notice, and the meetings held in pursuance of it are legal, even though a further notice by publication, which the statute directs, has been omitted.^ But for special meetings the require- ment of special notice is imperative, and it must be given as the statute requires.^ Sometimes it is directed to be given by publi- cation, sometimes by posted notice, and sometimes by personal notification. If the law requires the order or warrant for the meeting to specify its object, compliance is imperative, and the business which can be lawfully done at the meeting will be strictly limited to the object stated.* 336; Oregon v. Jennings, 119 IT. S. 74; Trust Co. v. Hebron, 51 Conn. 22; Pierce Aberdeen v. Sykes, 69 Miss. 236; and u. New Orleans Building Co., 9 La. 397; cases post, pp. 269-272. s. c. 29 Am. Dec. 448 ; Atlantic De Laine 1 Chamberlain v. Dover, 13 Me. 466 ; Co. v. Mason, 5 R. I. 463. 8. c. 29 Am. Dec. 517 ; Evans v. Osgood, " See People v. Cowles, 13 N. Y. 350; 18 Me. 213 ; School District v. Atherton, People v. Hartwell, 12 Mich. 508 ; People 12 Met. 105 ; Stone v. School District, 8 v. Brenahm, 8 Cal. 477 ; State v. Orvis, Cush. 592 ; Bethany v. Sperry, 10 Conn. 20 Wis. 235 ; Dishon v. Smith, 10 Iowa, 200 ; State v. Harrison, 67 Ind. 71 ; Pike 212 ; State v. Jones, 19 Ind. 356. County V. Rowland, 94 Pa. St. 238 ; State ' Tuttle v. Gary, 7 Me. 426. V. Pettineli, 10 Nev. 181 ; State v. Bon- * Little v. Merrill, 10 Pick. 543 ; Bart- nell, 35 Ohio St. 10 ; Ross v. Crockett, lett v. Kinsley, 15 Conn. 327 ; Atwood v. 14 La. Ann. 811 ; Gonlding v. Clark, 34 Lincoln, 44 Vt. 332 ; Holt's Appeal, 5 N. H. 148, See Stow v. Wise, 7 Conn. B. I. 603 ; Reynolds v. New Salem, 6 214 ; s. c. 18 Am. Dec. 99 ; Brooklyn Met. 340 ; Bowen v. King, 34 Vt. 156 ; 236 CONSTITUTIONAL LIMITATIONS. [CH. VIII. Special charters for corporations usually provide for some governing body who shall be empowered to make laws for them within the sphere of the powers conferred, and perhaps to appoint some portion or all of the ministerial and administrative oflBcers. In the case of towns, school districts, &c. , the power to make laws is largely confided to the corporators assembled in annual meeting ; ^ and in the case of counties, in some county board. The laws, whether designated orders, resolutions, or or- dinances, are more often in law spoken of as by-laws, and they must be justified by the grant of power which the State has made. Whatever is ultra vires in the case of any delegated authority, is of course void. Whatever is said above respecting notice for corporate meet- ings is equally applicable to meetings of the official boards, with this exception ; that as the board is composed of a definite num- ber of persons, if these all convene and act they may thei-eby waive the want of notice. But the meeting of a mere majority without notice to the others would be without legal authority .2 Corporations hy Prescription and Implication. The origin of many of the corporate privileges asserted and enjoyed in England is veiled in obscurity, and it is more than probable that in some instances they had no better foundation than an uninterrupted user for a considerable period. In other cases the royal or baronial grant became lost in the lapse of time, and the evidence that it had ever existed might rest exclusively upon reputation, or upon the inference to be drawn from the exercise of corporate functions. In all these cases it seems to be the law that the corporate existence may be maintained on the ground of prescription; that is to say, the exercise of cor porate rights for a time whereof the memory of man runneth not to the contrary is sufficient evidence that such rights were once granted by competent authority, and are therefore now exercised by right and not by usurpation.^ And this presumption con- ; eludes the crown, notwithstanding the maxim that the crown shall lose no rights by lapse of time. If the right asserted is one of which a grant might be predicated, a jury is bound to Haines v. School District, 41 Me. 246 ; s Introduction to Willcock on Manici- Bloomfield v. Charter Oak Bank, 121 pal Corporations ; The King v. Mayor, U. S. 121. &c. of Stratford upon Avon, 14 East, 348 ; 1 See Williams v. Roberts, 88 III. 11. Eobie v. Sedgwick, 35 Barb. 319. See ' Gordon v. Preston, 1 Watts, 386 ; s. o. Londonderry v. Andover, 28 Vt. 416. 26 Am. Dec. 75. CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 237 presume a grant from that prescription.^ In this particular the claim to a corporate franchise stands on the same ground as any claim of private right which requires a grant for its sup- port, and is to be sustained under the same circumstances of continuous assertion and enjoyment.^ And even the grant of a charter by the crown will not preclude the claim to corporate rights by prescription ; for a new charter does not extinguish old privileges.^ A corporation may also be established upon presumptive evi- dence that a charter has been granted within the time of memory. Such evidence is addressed to a jury, and though not conclusive upon them, yet, if it reasonably satisfies their minds, it will justify them in a verdict finding the corporate existence. " There is a great difference," says Lord Mansfield, " between length of time which operates as a bar to a claim, and that which is only used by way of evidence. A jury is concluded by length of time which operates as a bar ; as where the Statute of Limitations is pleaded in bar to a debt : though the jury is satisfied that the debt is due and unpaid, it is still a bar. So in the case of prescription. If it be time out of mind, a jury is bound to preclude the right from that prescription, if there could be a legal commencement of the right. But any written evidence, showing that there was a time when the prescription did not exist, is an answer to a claim founded on prescription. But length of time used merely by way of evidence may be left to the consideration of the jury, to be credited or not, and to draw their inference one way or the other according to circumstances." * The same ruling has been had in several cases in the courts of this country, where corporate powers had been exercised, but no charter could be produced. In one of these cases, common reputation that a charter had once existed was allowed to be given to the jury ; the court remarking upon the notorious fact that two great fires in the capital of the colony had destroyed many of the public records.^ In other cases there was evidence of various acts which could only lawfully and prop- erly be done by a corporation, covering a period of thirty, forty, or fifty years, and done with the knowledge of the State and 1 Mayor of Hull v. Horner, Cowp. 104, town, 34 N. H. 351. See Jameson v. Pee- per Lord Mansfidd. Compare People v. pie, 16 111. 257. Maynard, 15 Mich. 463 ; State v. Bunker, * Mayor of Hull v. Homer, Cowp. 104, 59 Me. 366. 108 ; citing, among other cases, Bedle v. 2 2 Kent, 277 ; Angell & Ames on Beard, 12 Co. 5. Corp. § 70; 1 Kyd on Corp. 14. ^ Dillingham v. Snow, 5 Mass. 547. s Hadduek's Case, T. Baym. 439 ; And see Bow v. AUenstown, 84 N. H. The King v. Mayor, &e. of Stratford 351 ; Bassett w. Porter, 4 Cush. 487. upon Avon, 14 Bast, 348 ; Bow v. Aliens- 238 CONSTITUTIONAL LIMITATIONS. [CH. VIII. without question.' The inference of corporate powers, however, is not one of law ; but is to be drawn as a fact by the jury.^ Wherever a corporation is found to exist by prescription, the same rule as to construction of powers, we apprehend, would apply as in other cases. The presumption as to the powers granted would be limited by the proof of the usage, and nothing could be taken by intendment which the usage did not warrant. Corporations are also said sometimes to exist by implication. When that power in the State which can create corporations grants to individuals such property, rights, or franchises, or im- poses upon them such burdens, as can only be properly held, enjoyed, continued, or borne, according to the terms of the grant, by a corpoi-ate entity, the intention to create such corporate entity is to be presumed, and corporate capacity is held to be conferred so far as is necessary to effectuate the purpose of the grant or burden. On this subject it will be sufficient for our purpose to refer to authorities named in the note.^ In these cases the rule of strict construction of corporate powers applies with unusual force. Municipal By-Laws. The power of municipal corporations to make by-laws is limited in various ways. 1. It is controlled by the Constitution of the United States and of the State. The restrictions imposed by those instruments, which directly limit the legislative power of tlie State, rest equally upon all the instruments of government created by the State. If a State cannot pass an ex post facto law, or law impairing the obli- gation of contracts, neither can any agency do so which acts under the State with delegated authority.* By-laws, therefore, which in 1 Stackbridge v. West Stockbridge, 12 stead, 2 Wend. 109 ; Thomas v. Dakin, 22 Mass. 400 ; New Boston v. Dunbarton, Wend. 9 ; per Shaw, Ch. J., in Stebbins v. 12 N. H. 409, and 15 N. H. 201 ; Bow Jennings, 10 Pick. 172 ; Mahony v. Bank V. Allenstown^ 34 N. H. 351 ; Trott v. of the State, 4 Ark. 620. Only wliere a Warren, 11 Me. 227. contract made in good faith cannot other- '^ New Boston ». Dunbarton, 15 N. H. wise be enforced, will tlie doctrine of ira- 201 ; Bow V. Allenstown, 34 N. H. 351 ; plication be upheld. Blair v. West Point, Mayor of Hull v. Horner, 14 East, 102. 2 McCrary, 459, and cases cited. 8 Dyer, 400, cited by Lord Kenyan, in * Angell & Ames on Corporations, EuBsell II. Men of Devon, 2 T. R. 067;, and § 322 ; Stay vesant v. Mayor, &c. of New in 2 Kent, 276 ; Viner's Abr. tit. " Cor- York, 7 Cow. 5R8 ; Brooklyn Central poration ; " Conservators of River Tone Railroad Co. v. Brooklyn City Railroad V. Ash, 10 B. & C. 349; b. c. 10 B. & C. Co., 32 Barb. 358; Illinois Conference 383, citing case of Sutton Hospital, 10 Co. Female College v. Cooper, 25 111. 148. 28 ; per Kent, Chancellor, in Denton ». The last was a case where a by-law of Jackson, 2 Johns. Ch. 320 ; Coburn v. El- an educational corporation was held void, lenwood, 4 N, H. 99; Atkinson v. Bemis, as violating the obligation of a contract 11 N. H. 44 ; North Hempstead v. Hemp- previously entered into by tlie corpora- CH. Tin.] THE GEADES OP MUNICIPAL GOVERNMENT. 239 their operation would be ex post facto, or violate contracts, are not within the power of municipal corporations ; and whatever the people by the State constitution have prohibited the State government from doing, it cannot do indirectly through the local governments. 2. Municipal by-laws must also be in harmony with the general laws of the State, and with the provisions of the municipal char- ter. Whenever they come in conflict with either, the by-law must give way.i The charter, however, may expressly or by necessary implication exclude the general laws of the State on any particular subject, and allow the corporation to pass local laws at discretion, which may differ from the rule in force elsewhere.^ But in these cases the control of the State is not excluded if the legislature afterward see fit to exercise it ; nor will conferring a power upon a corporation to pass by-laws and impose penalties for the regula- tion of any specified subject necessarily supersede the State law on the same subject, but the State law and the by-law may both stand together if not inconsistent.^ Indeed, an act may be a penal offence under the laws of the State, and further penalties, under proper legislative authority, be imposed for its commission by municipal by-laws, and the enforcement of the one would not preclude the enforcement of the other,* tion in a certificate of scholarship which Tex. App. 697. Under the Kansas Con- it had issued. See also Davenport, &o. stitution no city can by imposing a liquor Co. V. Davenport, 13 Iowa, 229 ; Saving license tax encourage a forbidden busi- Society v. Philadelphia, 31 Pa. St. 175 ; ness without incurring a liability to be Haywood v. Savannah, 12 Ga. 404. If ousted of its corporate powers. State v. an ordinance and its acceptance make a Topeka, 30 Kan. 653 ; 31 Kan. 452. contract, it cannot be impaired by sub- * State v. Clarke, 1 Dutcli. 54 ; State sequent ordinances. People v. Chicago r. Dwyer, 21 Minn. 512; Covington v. W. D. Ry. Co., 118 HI. 113; Kansas City East St. Louis, 78 III. 548; Coultefville V. Corrigan, 86 Mo. 67. v. Gillen, 72 III. 59fl; McPherson v. Che- 1 Wood V. Brooklyn, 14 Barb. 425; banse, 114 111. 46; St. Johnsbury v. Mayor, &c. of New York v. Nichols, 4 Thompson, 59 Vt. 300. Peculiar and ex- Hill, 209; Petersburg!;. Metzker, 21 111. ceptional regulations may even be made 205 ; Southport v. Ogden, 23 Conn. 128 ; applicable to particular portions of a city Andrews v. Insurance Co., 37 Me. 266 ; only, and yet not be invalid. Goddard, Canton v. Nist, 9 Ohio St. 439; Carrw. Petitioner, 16 Pick. 604; Commonwealth St. Louis, 9 Mo. 191 ; Commonwealth v. v. Patch, 97 Mass. 221, per Hoar, J. ; St. Erie & Northeast Railroad Co., 27 Pa. Louis v. Weber, 44 Mo. 547. St. 339 ; Burlington o. Kellar, 18 Iowa, » City of St. Louis v. Bentz, 11 Mo. 69; Conwell v. O'Brien, 11 Ind. 419; 61; City of St. Louis v. Cafferata, 24 Mo. March v. Commonwealth, 12 B. Monr. 25. 94 ; Rogers v. Jones, 1 Wend. 261 ; Levy See Baldwin B. Green, 10 Mo. 410; Cowen v. State, 6 Ind. 281 ; Mayor, &c. of Mo- V. West Troy, 43 Barb. 48; State v. biles. Allaire, 14 Ala. 400; Elk Point v. Georgia Medical Society, 38 Ga. 608; Vaugn, 1 Dak. 113; People r. Hanrahan, Pesterfleld v. Vickers, 3 Cold. 205 ; Mays 75 Mich. 611. V. Cincinnati, 1 Ohio St. 268 ; Wirth v. * Such is the clear weight of authoiv Wilmington, 68 N. C. 24 ; Flood v. State, ity, though the decisions are not uniform. 19 Tex. App. 584 ; Bohmy v. State, 21 We quote from Rogers v. Jones, 1 Wend. 240 CONSTITUTIONAL LIMITATIONS. [CH. VIIL 3. Municipal by-laws must also be reasonable. Whenever they appear not to be so, the court must, as a matter of law, declare 261 : " But it is said that the by-law of a town or corporation is void, if the legisla- ture have regulated the subject by law. If the legislature have passed a law regu- lating as to certain things in a city, I apprehend the corporation are not there- by restricted from making further regu- lations. Cases of this kind have oc- curred and never been questioned on that ground ; it is only to notice a case or two out of many. The legislature have imposed a penalty of one dollar for servile labor on Sunday ; the corporation of New York have passed a by-law im- posing the penalty of five dollars for the same offence. As to storing gunpowder in New York, the legislature and corpora- tion have each imposed the same penalty. Suits to recover the penalty have been sustained under the corporation law. It is believed that the ground has never been taken that there was a conflict with the State law. One of these cases is re- ported in 12 Johns. 122. The question was open for discussion, but not noticed." In Mayor, &c. of Mobile v. Allaire, 14 Ala. 400, the validity of a municipal by- law, imposing a fine of fifty dollars for an assault and battery committed within the city, was brought in question. Collier, Ch. J., says (p. 403) : " The object of the power conferred by the charter, and the purpose of the ordinance Itself, was not to punish for an offence against the criminal justice of the country, but to provide a mere police regulation, for the enforcement of good order and quiet within the limits of the corporation. So far as an ofi'ence has been committed against the public peace and morals, the corporate authori- ties have no power to inflict punishment, and we are not informed that they have attempted to arrogate it. It is altogether immaterial whether the State tribunal has interfered and exercised its powers in bringing the defendant before it to answer for the assault and battery ; for whether he has there been punished or acquitted is alike unimportant. The offence against the corporation and the State we have seen are distinguishable and wholly dis- connected, and the prosecution at the suit of each proceeds upon a different hypoth- esis ; the one contemplates the observ- ance of the peace and good order of the city ; the other has a more enlarged ob- ject in view, the maintenance of the peace snd dignity of. the State." See also Mayor, &c. of Mobile v. Rouse, 8 Ala. 615; Intendant, &c. of Greensboro' v. MuUins, 13 Ala. 341 ; Mayor, &c. of New York V. Hyatt, 3 E. D. Smith, 156; People V. Stevens, 13 Wend. 341 ; Blatcli- ley V. Moser, 15 Wend. 215 ; Amboy v. Sleeper, 31 111. 499; State i>. Crummey, 17 Minn. 72 ; State v. Oleson, 26 Minn. 507 ; Greenwood v. State, 6 Bax. 567 ; s. c. 32 Am. Kep. 539; Brown villa v. Cook, 4 Neb. 101 ; Levy v. State, 6 Ind. 281 ; Am- .brose v. State, 6 Ind. 351 ; Lawrenceburg V. Wuest, 16 Ind. 3.37 ; St. Louis v. Bentz, 11 Mo. 61 ; St. Louis v. Cafferata, 24 Mo. 94; State v. Gordon, 60 Mo. 383; St. Louis V. Schoenbusch, 95 Mo. 618 ; Shafer V. Mumma, 17 Mil. 381 ; Brownville :;. Cook, 4 Neb. 101 ; State v. Ludwig, 21 Minn. 202; Bloomfield v. Trimble, 54 Iowa, 399; s. c. 37 Am. Rep. 212; Chi- cago Packing, &c. Co. v. Chicago, 88 HI. 221; s. c. 30 Am. Rep. 545; Haukins ». People, 106 111. 628 ; Fennell v. Bay City, 36 Mich. 186; McRea v. Americas, 59 Ga. 168 ; Wong v. Astoria, 13 Oreg. 538 ; Hughes V. People, 8 Col. 536. Under a statute forbidding cities to punish acts punishable by State law, a city may pun- ish selling liquor without a city license, as this is not an offence against the State law. Frankfort v. Aughe, 114 Ind. 77. On the other liand, it was held in State u. Cowan, 29 Mo. 330, that where a municipal corporation was authorized to take cognizance of and punish an act as an ofience against its ordinances which was also an offence against the general laws of the State, and this power was exercised and the party punished, he could not afterwards be proceeded against under the State law. "The constitu- tion," say the court, " forbids that a per- son shall be twice punished for the same offence. To hold that a party can be prosecuted for an act under the State laws, after he has been punished for the same act by the municipal corporation within whose limits the act was done, would be to overthrow the power of the General Assembly to create corporations CH. tiil] the grades of municipal government. 241 them void.^ To render them reasonable, they should tend in some degree to the accomplishment of the objects for which the to aid in the management of the affairs of the State. Fora power in the State to pun- ish, after a punishment bad been inflicted by the corporate authorities, cuuld only find a support in the assumption that all the proceedings on the part of the corpora- tion were null and void. The circumstance that the municipal authorities have not exclusive jurisdiction over the acts which constitute offences within their limits does not affect the question. It is enough that their jurisdiction is not excluded. If it exists, — although it may be concurrent, — if it is exercised, it is valid and binding so long as it is a constitutional principle that no man may be punished twice for the same offence." A similar ruling is laid down in People v. Hanrahan, 75 Mich. 611, and the case seems to be supported by State v. Welch, 36 Conn. 216. The case of Slaughter ». People, cited below, goes still farther. Those which hold that the party may be punished under both the State and the municipal law are within the principle of Fox ». State, 5 How. 410 ; Moore v. Peo- ple, 14 How. 13. And see Phillips v. People, 65 111. 429 ; State v. Rankin, 4 Cold. 145 ; Ex parte Siebold, 100 U. S. 371. A city cannot punish by ordinance what is already an. offence by statute. State V. Keith, 94 N. C. 933 ; In re Sic, 73 CaL 142 ; Menken v. Atlanta, 78 Ga. 668; unless expressly empowered: Ex parte Bourgeois, 60 Miss. 663. See Loeb V. Attica, 82 Ind. 175. In Jefferson City V. Courtmire, 9 Mo. 692, it was held that authority to a municipal corporation to "regulate the police of the city" gave it no power to pass an ordinance for the punishment of indictable offences. To the same effect is State o. Savannah, 1 T. U. P. Charl. 235 ; s. c. 4 Am. Dec. 708 ; Slaughter v. People, 2 Doug. (Mich.) 334 ; Jenkins v. Thomasville, 35 Ga. 145 ; Vason V. Augusta, 38 Ga. 542 ; Reich ». State, 53 Ga. 73; Washington v. Ham- mond, 76 N. C. 33 ; New Orleans v. Mil- ler, 7 La. Ann. 651. Where an act is expressly or by implicar tion permitted by the State law, it cannot be forbidden by the corporation. Thus, the statutes of New York established cer- tain regulations for the putting up and marking of pressed hay, and provided that such hay miglit be sold without deduc- tion for tare, and by the weight as marked, or any other standard weight that should be agreed upon. - It was held that the city of New York had no power to pro- hibit under a penalty the sale of such hay without inspection ; this being obviously inconsistent with the statute which gave a right to sell if its regulations were com- plied' with. Mayor, &c. of New York v. Nichols, 4 Hill, 209. The penal enactments of a corpora- tion, like those of the State, must be sev- eral (De Ben v. Gerard, 4 La. Ann. 30), and will be strictly construed. St. Louis V. Goebel, 32 Mo. 295. An ordinance punishing as a crime a failure to build a sidewalk is void. Port Huron e. Jenkin- son, 43 N. W. Rep. 923 (Mich.). Compare James v. Pine Bluff, 49 Ark. 199. I 2 Kyd on Corporations, 107 ; Davies V. Morgan, 1 Cromp. & J. 587 ; Chamber- lain of London v. Compton, 7 D. & R. 597 ; Clark ». Le Cren, 9 B. & C. 52 ; Gos- ling V. Veley, 12 Q. B. 328 ; Dunham v. Rochester, 5 Cow. 462; Mayor, &c. of Memphis v. Winfield, 8 Humph. 707 ; Hay- den V. Noyes, 6 Conn. 391 ; Waters v. Leech, 3 Ark. 110; White v. Mayor, 2 Swan, 364; Ex parte Burnett, 30 Ala. 461 ; Craig v. Burnett, 32 Ala. 728,; Aus- tin V. Murray, 16 Pick. 121 ; Goddard, Pe- titioner, 16 Pick. 504 ; Commonwealth v. Worcester, 3 Pick. 461 ; Commissioners V. Gas Co., 12 Pa. St. 318; State v. Jersey City, 29 N. J. 170; Gallatin v. Bradford, 1 Bibb, 209; Western Union Tefegrapli Co. v. Carew, 15 Mich. 525 ; State V. Freeman, 38 N. H. 426 ; Pedrick v. Bailey, 12 Gray, 161 ; St. Louis «. Weber, 44 Mo. 550; Peoria v. Callioun, 29 111. 317 ; St. Paul v. Traeger, 25 Minn. 248 ; B. c. 33 Am. Rep. 462. But where the question of the reasonableness of a by- law depends upon evidence, and it relates to a subject within the jurisdiction of the corporation, the court will presume it to be reasonable until the contrary is shown. Commonwealth v. Patch, 97 Mass. 221. And see St. Louis v. Weber, 44 Mo. 547 ; Clason V. Milwaukee, 30 Wis. 316 ; St. Louis I'. Knox, 6 Mo. App. 247. An ordinance expressly authorized by the 16 242 CONSTITUTIONAL LIMITATIONS. [CH. VIIL corporation was created and its powers conferred. A by-law, that persons chosen annually as stewards of the Society of Scriveners should furnish a dinner on election day to the freemen of the society, — the freemen not being the electors nor required to at- tend, and the ofi&ce of steward being for no other purpose but that of giving the dinner, — was held not connected with the business of the corporation, and not tending to promote its objects, and therefore unreasonable and void.^ And where a statute permitted a municipal corporation to license the sale of intoxicating drinks and to charge a license fee therefor, a by-law requiring the pay- ment of a license fee of one thousand dollars was held void as not advancing the purpose of the law, but as being in its nature pro- hibitory .2 And if a corporation has power to prohibit the carrying on of dangerous occupations within its limits, a by-law which should permit one person to carry on such an occupation and prohibit another, who had an equal right, from pursuing the same business ; or which should allow the business to be carried on in existing buildings, but prohibit the erection of others for it, would be unreasonable.^ And a right to license an employment does not imply a right to charge a license fee therefor with a view to reve- nue, unless such seems to be the manifest purpose of the power ; but the authority of the corporation will be limited to such a charge for the license as will cover the necessary expenses of issuing it, and the additional labor of ofiScers and other expenses thereby imposed. A license is issued under the police power ; but the exaction of a license fee with a view to revenue would be an exercise of the power of taxation ; and the charter must legislature cannot be held unreasonable. Joliet, 79 III. 25 ; State ». Mott, 61 Md. A Coal Float' w. JefEersonville, 112 Ind. 297; post, p. 741, note 2. 15. To be reasonable, by-laws should be ^ Mayor, &c. of Hudson v. Thome, 1 equal in their operation. Tugman v. Paige, 261. A power to prevent and reg- Chlcago, 78 111. 405; Barling v. West, ulate the carrying on of manufactures 29 Wis. 307. An ordinance as to ob- dangerous in causing or promoting fires Btruoting streets with cars, unreasouable does not authorize an ordinance prohlb- in its operation only in one locality, will jting the erection of wooden buildings be enforced elsewhere. Pennsylvania within the city, or to limit the size of E. R. Co. V. Jersey City, 47 N. J. L. 286. buildings which individuals shall be per- 1 Society of Scriveners v. Brooking, 3 mitted to erect on their own premises. Q. B. 95. See, on this general subject, Ibid. See also Newton v. Belger, 143 Dillon, Mun. Corp. §§ 251-264. Mass. 598. An ordinance for the destruc- 2 Ex- parte Burnett, 30 Ala. 461 ; Craig tion of property as a nuisance without a V. Burnett, 32 Ala. 728. A by-law de- judicial hearing is void. Darst «. People, daring the keeping on hand of intoxicat- 51 III. 286. See cases p. 741, n. 2, post. ing liquors a nuisance was held unreason- An ordinance for the arrest and impris- able and void in Sullivan v. Oneida, 61 onment without warrant of a person re- Ill. 242. That which is not a nuisance in fusing to assist in extinguishing a fire fact cannot be made such by municipal is void. Judson v. Reardon, 16 Minn, ordinance. Chicago, &c. B. B. Co. e. 431. CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 243 plainly show an intent to confer that power, or the municipal corporation cannot assume it.^ A by-law, to be reasonable, should be certain.^ If it affixes a penalty for its violation, it would seem that such penalty should be a fixed and certain sum, and not left to the discretion of the officer or court which is to impose it on conviction ; * though a 1 State V. Roberts, 11 Gill & J. 506; under the police power with a view to Mays V. Cincinnati, 1 Ohio St. 268 ; Cin- cinnati V. Bryson, 15 Ohio, 625 ; Free- holders V. Barber, 6 N. J. Eq. 64 ; Kip o. Paterson, 26 N. J. 298 j State v. Hobolien, 41 N. J. 71 ; Bennett v. Borough of Bir- mingham, 31 Pa. St. 15; Cummonwealth V. Stodder, 2 Cash. 562 ; Chilvers v. Peo- ple, 11 Mich. 43 ; Mayor, &c. of Mobile V. Yuille, 3 Ala. 137 ; Johnson v. Philadel- phia, 60 Pa. St. 446 ; State v. Herod, 29 Iowa, 128 ; Burlington v. Bumgardner, 42 Iowa, 673 ; Mayor, &c. of New York V. Second Avenue R. R. Co., 32 N. Y. 261 ; Home Ins. Co. v. Augusta, 50 Ga. 530; Cairo u. Bross, 101 111. 475; Muh- lenbrinck v. Commissioners, 42 N. J. 364 ; s. o. 36 Am. Rep. 518 ; Mestayer v. Cor- rig€, 38 La. Ann. 708 ; Wisconsin Tel. Co. V. Oshkosh, 62 Wis. 32 ; Vansant v. Harlem Stage Co., 59 Md. 330. Neverthe- less, the courts will not inquire very closely into the expense of a license with a view to adjudge it a tax, where it does not appear to be unreasonable in amount in view of 'its purpose as a regulation. Ash V. People, 11 Mich. 347 ; Van Baalen V. People, 40 Mich. 458 ; People v. Rus- sell, 49 Mich. 617 ; Wolf v. Lansing, 53 Mich. 367 ; Johnson v. Philadelphia, 60 Pa. St. 445; Burlington v. Putnam Ins. Co., 31 Iowa, 102; Boston «. Schaffer, 9 Pick. 415 ; Welch v. Hotchkiss, 39 Conn. 140; State ». Hoboken, 41 N. J. 71; Mankato v. Fowler, 32 Minn. 364 ; Jack- son w. Newman, 59 Miss. 385; Ex parte Gregory, 20 Tex. App. 210 ; Fayetteville V. Carter, 12 S. W. Rep. 673 (Ark.). In Illinois the imposition of license fees for revenue has been sustained. U. S. Dist. Co. V. Chicago, 112 111. 19, and cases cited ; and under the California Constitu- tion of 1879 licenses may be imposed for regulation or revenue, or both. In re Guerrero, 69 Cal. 88. A higher license imposed on a non-resident than on a resi- dent for purposes of revenue is void. Morgan v. Orange, 50 N. J. L. 389. And in some cases it has been held that license fees might be imposed operate as a restriction upon the busi- ness or thing licensed. Carter v. Dow, 16 Wis. 299 ; Tenney v. Lenz, 16 Wis. 566. See State v. Cassidy, 22 Minn. 312 ; Youngblood v. Sexton, 32 Mich. 406; s. 0. 20 Am. Rep. 654; St. Johnsbury v. Thompson, 59 Vt. 200; Russellville w. White, 41 Ark. 485. But in such cases, where the right to impose such license fees can be fairly deduced from the charter, it would perhaps be safer and less liable to lead to confusion and difficulty to refer the corporate authority to tlie taxing power, rather than exclusively to the power of regulation. See Dunliam v. Trustees of Rochester, 5 Cow. 462, upon the extent of the police power Fees which are imposed under the inspection laws of the State are akin to license fees, and if exacted not for revenue, but to meet the expenses of regulation, are to be referred to the police power. Cincin- nati Gas Light Co. v. State, 18 Ohio St. 237. A city cannot exact a license fee from a national bank. Carthage v. ISn- tional Bank, 71 Mo. 508 ; s. c. 36 Am. Rep. 494. On this subject in general, see post, 608 ; Dillon, Mun. Corp. §§ 291- 308. 2 Ordinance requiring use of device, which shall prevent escape of sparks as eftectually as by any means in use for the purpose, is bad. Atkinson v. Good- rich Transp. Co., 60 Wis. 141. Under power to prohibit driving at a rate of speed deemed inconsistent with public safety, the city may not prohibit driving at a speed which shall be found to be immoderate under the circumstances. Com. V. Roy, 140 Mass. 432. What shall be a violation of an ordinance cannot be left to implication. Helena v. Gray, 17 Pac. Rep. 564 (Mont). A license fee may not be left to be fixed for each case, or to be determined by the mayor. Bills W.Goshen, 20 N. E. Rep. 115, (Ind.) ; State Center v. Barenstein, 66 Iowa. 249. * Melick V. Washington, 47 N. J. L. 254; State v. Crenshaw, 94 N. C. 877. 244 CONSTITUTIONAL LIMITATIONS. [CH. VIIL by-law imposing a penalty not exceeding a certain sum has been held not to be Toid for uncertainty .^ So a by-law, to be reasonable, should be in harmony with the general principles of the common law.^ If it is in general re- 1 Mayor, &e. of Huntsville v. Phelps, 27 Ala. 55, overruling Mayor, &c. of Mo- bile V. Yuille, 8 Ala. 137. And see Piper V. Chappell, 14 M. & W. 624. 2 Tlie following are cases in which municipal ordinances have been passed upon and their reasonableness deter- mined : Markets : Prohibiting sales out- side of. Reasonable — BufEalo u.Webster, 10 Wend. 99 ; Bush v. Seabury, 8 Johns. 418 ; Bowling Green v. Carson, 10 Bush, 64; Le Claire o. Davenport, 13 Iowa, 210 ; Winnsboro v. Smart, 11 Rich. L. 551 ; St. Louis v. Weber, 14 Mo. 547. Unreasonable — Caldwell v. Alton, 33 III. 416 ; Bloomington v. Wahl, 46 III. 489; Bethune ». Hayes, 28 Ga.,560. Compare Hughes v. Recorder's Court, 75 Mich. 674, with People v. Kier, 48 N. W. Rep. 1039 (Mich.). See Gossigi o. !New Orleans, 4 Sou. Rep. 15 (La.) ; Ex parte Byrd, 84 Ala. 17. Requiring per- mission to occupy stands. Reasonable — Nightingale, petitioner, 11 Pick. 167. Imposing tax on stands. Reasonable — Cincinnati v. Buckingham, 10 Ohio, 257. Unreasonable — Kip v. Paterson, 26 N. J. 298. Licensing hucksters : Rea- sonable — Cherokee u. Fox, 34 Kan. 16. Unreasonable — Dunham v. Rochester, 6 Cow. 462; St. Paul v. Traeger, 25 Minn. 248; s. c. 33 Am. Rep. 462; Muhlenbrinck v. Commissioners, 42 N. J. 364 ; s. o. 86 Am. Rep. 518 : Frommer v. Richmond, 31 Gratt. 646; Barling v. West, 29 Wis. 307 ; 8. o. 9 Am. Rep. 676. Prohibiting wagons standing in market. Unreasonable — Commonwealth !). Brooks, 109 Mass. 355; Commonwealth V. Wilkins, 121 Mass. 356. Auctions : Prohibiting sales at, on streets. Rea- sonable — White V. Kent, 11 Ohio St. 560. After sunset Unreasonable — Hayes v. Appleton, 24 Wis. 542. Impos- ing heavy license on. Reasonable — Decorah v. Dunstan, 38 Iowa, 96 ; Wig- gins V. Chicago, 68 III. 372 ; Fretwell v. Troy, 18 Kan. 271. Making it penal to sell without a license. Goshen v. Kern, 63 Ind. 468. Saloons and Restaurants: Closing for the night. Reasonable — Staats V. Washington, 45 N. J. L. 318; Platteville v. Bell, 43 Wis. 488 ; Smith v. Knoxville, 3 Head, 245 ; State v. Welch, 86 Conn. 215 ; State a. Freeman, 38 N. H. 426 ; Maxwell v. Jonesboro, 11 Heisk. 257; Baldwin v. Chicago, 68 III. 418. Unreasonable — Ward v. Greenville, 8 Baxt. 228 ; s. c. 35 Am. Rep. 700. Clos- ing on certain days. Unreasonable — Grills V. Jonesboro, 8 Baxt. 247. On Sunday. Reasonable — Gabel v. Hous- ton, 29 Tex. 336 ; State v. Ludwig, 21 Minn. 202 ; Hudson v. Geary, 4 R. I. 485. Forbidding sale of liquor at restaurants. Reasonable — State v. Clark, 28 N. H. 176. Forbidding female waiters in sa- loons. Reasonable — Bergman v. Cleve- land, 39 Ohio St. 651. Hackney Car- riages : Reasonable — to regulate fares. Commonwealth v. Gage, 114 Mass. 328. To put under direction of police. Com- monwealth V. Matthews, 122 Mass. 60; St. Paul V. Smith, 27 Minn.-364; s. c. 38 Am. Rep. 296 ; Veneman v. Jones, 20 N. B. Rep. 644 (Ind.). To exclude from certain streets. Commonwealth v. Stodder, 2 Cush. 562. To require a license. Brooklyn v. Breslin, 57 N. T. 591 ; City Council v. Pepper, 1 Rich. L. 361 ; Frankfort, &c. R. Co. ti. Philadel- phia, 58 Pa. St. 119 ; St. Louis v. Green, 70 Mo. 662. Unreasonable — To grant one person exclusive right to run omni- buses in the city. Logan v. Pyne, 43 Iowa, 524 ; s. c. 22 Am. Rep. 261. Bail- roads: Regulating speed of. Reasonable — Pennsylvania Company v. James, 81^ Pa. St. 194 ; Whitson v. Franklin, 34 Ind. 392. Unreasonable — Outside of inhab- ited portion of city. Meyers v. Chicago, R. I. & P. Co., 67 Iowa, 555. But see Knobloch v. Chicago, &c. Ry. Co., 31 Minn. 402. Requiring flagman at cross- ing which is not dangerous. Unreason- able — Toledo, &c. R. R. Co. v. Jackson- ville, 67 111. 37 ; s. c. 16 Am. Rep. 611. Prohibiting removal ot snow by street railway companies without consent of street superintendent. Reasonable — Un- ion Railway Company v. Cambridge, 11 Allen, 287. Obstructing streets with cars. Reasonable — Penna. R. B. Co. v. Jersey City, 47 N. J. L. 286. Burials : CH. VIII.] THE GRADES OF MUNICIPAL GOVEENMENT. 245 straint of ti-ade, — like the by-law that no person shall exercise the art of painter in the city of London, not being free of the corn- Prohibiting in town. Unreasonable — Austin V. Murray, 16 Pick. 121. Prohib- iting within certain limits. Reasonable — Coates V. New York, 7 Cowen, 585. Subjecting private cemeteries to control of city sexton. Unreasonable — Bogert V. Indianapolis, 13 Ind. 131. Requiring city sexton to expend $500 on the ceme- tery and to bury paupers free. Unrea- sonable — Beroujohn v. Mobile, 27 Ala. 68. See p. 740, n. 2, post. Fire Limits : Establishing. Reasonable — King v. Dav- enport, 08 III. 305 ; s. c. 38 Am. Rep. 89 ; Monroe v. Huffiuan, 29 La. Ann. 651 ; s. c. 29 Am. Rep. 345 ; Respublica v. Du- quet, 2 Yeates, 493 ; Wadleigh v. Gllman, 12 Me. 403; 8. c. 28 Am. Dec. 188; Brady v. Northwestern Ins. Co., 11 Mich. 425 ; Salem v. Maynes, 123 Mass. 372 ; Troy V. Winters, 4 Thomp. & C. (N. Y.) 256 ; McKibbin v. Forth Smith, 35 Ark. 352. Requiring a building license fee. Reasonable — Welch v. Hotohkiss, 39 Conn. 140 ; 8. o. 12 Am. Rep. 383. For- bidding frame buildings in small towns. Unreasonable — Kneedler v. Norristown, 100 Pa. St. 368. Houses of III Fame : Reasonable — Prohibiting keeping of. State V. Williams, 11 S. C. 288 ; Childress V. Mayor, 3 Sneed, 356 ; State v. Mack, 6 Sou. Rep. 808 (La). Imposing penalty on owner of. McAlister v. Clark, 33 Conn. 91. Licensing. State v. Clarke, 54 Mo. 17 ; s. c. 14 Am. Rep. 471. Ar- resting and fining lewd women. Shafer V. Mumma, 17 Md. 331 ; Braddy v. Mil- ledgeville, 74 Ga. 516. Unreasonable — Demolishing. Welch v. Stowell, 2 Doug. (Mich.) 332. Forbidding prostitute occu- pying any room in city. Milliken v. City Council, 54 Tex. 888 ; B. c. 38 Am. Rep. 629. Slaughter Houses : Prohibiting in certain parts of city. Reasonable — Cronin V. People, 82 N. Y. 318 ; b. c. 37 Am. Rep. 564; Metropolitan Board of Health v. Heister, 37 N.Y, 661 ; Milwaukee v. Gross, 21 Wis. 241. See Wreford v. People, 14 Mich. 41. laundries : Forbidding, except in brick or stone buildings, upheld. Mat- ter of Yick Wo, 68 Cal. 294. Contra, Yick Wo V. Hopkins, 118 U. S. 356. Limited to a certain part of a city. In re Hang Kie, 69 Cal. 149 ; and to certain hours. Ex parte Moynier, 65 Cal. 3.3. The following are cases in which mu- nicipal ordinances have been declared reasonable — Proliibiting keeping of swine in a, city. Commonwealth v. Patch, 97 Mass. 221 ; State v. Holcomb, 68 Iowa, 107. Prohibiting swine running at large. Waco V. Powell, 32 Tex. 258 ; Crosby v. Warren, 1 Rich. 385 ; Whitfield v. Long- est, 6 Ired. L. 268 ; Roberts v. Ogle, 30 III. 459 ; Gosselink v. Campbell, 4 Iowa, 296. Prohibiting cattle running at large. Commonwealth v. Bean, 14 Gray, 52. Impounding such and selling after notice. Cartersville v. Lanham, 67 Ga. 753 ; but only the expense of impounding can be retained, not a fine upon the owner. Wilcox V. Hemming, 58 Wis. 144. Grant- ing exclusive rights to remove carcasses of animals, dirt, or offal from city. Van- dine, petitioner, 6 Pick. 187 ; 8. c. 17 Am. Dec. 351. Contra, River Rendering Co. v. Belir, 77 Mo. 91. Requiring consent of mayor to maintain an awning. Fedrick V. Bailey, 12 Gray, 161. Requiring side- walk to be cleared of snow. Goddard, petitioner, 16 Pick. 504; b. o. 28 Am. Dec. 259; Kirby v. Boylston Market Ass'n, 14 Gray, 249. Contra: Gridley v. Bloomington, 88 111. 555. Requiring hoist- way to be closed after business hours. New York v. Williams, 15 N. Y. 502. Re- quiring a drawbridge to be closed after a vehicle had been kept waiting ten min- utes. Chicago V. McGinn, 51 111. 266. Prohibiting laying of gas mains in win- ter. Northern Liberties v. Gas Co., 12 Pa. St. 318. Requiring hay or coal to be yeiglied by city weighers. Stokes v. New York, 14 Wend. 87 ; Yates v. Mil- waukee, 12 Wis. 673; O'Maley . Worcester, 123 Mass. 311 ; s. c. 25 Am. Eep. 90; Wright v. Augusta, 78 Ga. 241; Black «. Columbia, 19 S. G. 412; Vanhorn v, Des Moines, 63 Iowa, 447 ; Mendel i>. Wheeling, 28 W. Va, 233 ; nor for the inefficiency of its firemen : Wheeler V. Cincinnati, 19 Ohio St. 19; s. o. 2 Am. Rep. 368 ; Patch ». Covington, 17 B. Mon. 722 ; Greenwood v. Louisville, 13 Bush, 22fi ; 8. c. 26 Am. Rep. 263 ; HafEord v. New Bedford, 16 Gray, 297 ; Fisher v. Boston, 104 Mass. 87 ; s. o. 6 Am. Rep. 196 ; Jewett v. New Haven, 38 Conn. 368; Torbush v. Norwich, 38 Conn. 225 ; 8. c. 9 Am. Rep. 395; Howard v. San Fran- cisco, 51 Cal. 52; Heller v. SedMia, 53 Mo. 159 ; 8. c. 14 Am. Rep. 444 ; Mc- Kenna v. St. Louis, 6 Mo. App. 320 ; Rob- inson V. Evansville, 87 Ind. 334 ; nor for not preventing " coasting " in its streets, to the injury of individuals : Shepherd v. Chelsea, 4 Allen, 113; Pierce v. New Bedford, 129 Mass. 534; Ray v. Man- chester, 46 N. H. 59 ; Altvater v. Balti- more, 31 Md. 462 ; Hutchinson v. Concord, 41 Vt. 271 ; Calwell v. Boone, 51 Iowa, 687 ; 8. c. 33 Am. Rep. 154 ; Schultz v. Milwaukee, 49 Wis. 254; s. c. 35 Am. Eep. 779; Burford v. Grand Rapids, 53 Mich. 98; Weller n. Burlington, 60 Vt. 28 ; Lafayette v. Timberlake, 88 Ind. 330; but see Taylor v. Cumberland, 64 Md. 68; nor for fitting a path for " coasting " in public grounds, where a collision occurs with a person passing it : Steele t>- Boa- ton, 128 Mass. 583; nor for failure to light the streets sufficiently: Freeport V. Isbell, 83 III. 440; 8. c. 25 Am. Rep. 407 ; Miller v. St. Paul, 38 Minn. 134 ; see Randall v. Railroad Co., 106 Mass. 276; 8. c. 8 Am. Rep. 327; nor for granting to a railroad a right of wny along one of its streets : Davenport v. Stevenson, 84 Iowa, 225; Frith v. Du- l)u«[ue, 45 Iowa, 406 ; Stevenson v. Lex- ington, 69 Mo. 157 ; nor for failure to compel such railroad to maintain safety gates : Kistner v. Indianapolis, 100 Ind. 210 ; nor for failure to enact proper or- dinances for keeping its sidewalks in repair, or to enforce them if enacted : Cole V. Medina, 27 Barb. 218; nor for failure to build footwalks adjoining a bridge : Lehigh Co. i: Hoffi)rt, 116 Pa. St. 119 ; nor for allowing a shooting-gallery to be maintained : Hubbell jj. Viroqua, 67 Wis. 343; nor for permitting cannon firing: Wheeler v. Plymouth, 116 Ind. 153; Lincoln w. Boston, 148 Mass. 578; Robinson v. Greenville, 42 Ohio St. 625; nor the discharge of fireworks : Ball v. Woodbine, 61 Iowa. 83; nor for dam- age done on adjoining property by its failure to remove a dangerous wall : Kiley v. Kansas City, 87 Mo. 103 j Anderson v. East, 117 Ind. 126 ; Cain v. Syracuse, 95 N. Y. 83; otherwise for injury therefrom to a person on the street. Duffy v. Dubuque, 63 Iowa, 171. 1 Such as an ordinance forbidding fire- works within a city : Hill v. Charlotte, 72 N. C. 55 ; 8. e. 21 Am. Rep. 451 ; or for- bidding cattle running at large. Rivers v. Augusta, 65 Ga. 376; 8. c. 38 Am. Rep. 787. A city is not liable for a loss by fire which might have been prevented if the city had not out off the water from one of its hydrants. Tainter v. Worcester, 123 Mass. 311. ^ Brewster v. Davenport, 51 Iowa, 427 ; Wehn V. Commissioners, 5 Neb. 494 ; s. c. 25 Am. Rep. 497 (case of a jail, com- plained of as offensive in the neighbor- hood) I Carroll v. St. Louis, 4 Mo. App. 191 ; Saxton v. St. Joseph, 60 Mo. 153 ; Wicks V. De Witt, 54 Iowa, 130; White II. Yazoo City, 27 Miss. 357 ; Vincennes v. Richards, 23 Ind. 381 ; Highway Com'rs V. Ely, 54 Mich. 173; Fort Worth «. Craw- ford, 64 Tex. 202. There can be no re- covery for an injury caused by blasting in the course of a public work, in the absence of negligence in the city's agent. Blumb V. Kansas City, 84 Mo. 112 ; Mui^ phy V. Lowell, 128 Mass. 396. Contra, Joliet V. Harwood; 86 111. 110. s Jlills ... Brooklyn, 32 N. Y. 489} CH. VIII.] THE GRADES 01" MUNICIPAL GOVERNMENT. 255 through the exercise or failure to exercise its political authority, causes incidental injury to individuals, an action will not lie for such injury. The reason is obvious. The maintenance of such an action would transfer to court and jury the discretion which the law vests in the municipality, but transfer them not to be exer- cised directly and finally, but indirectly and partially by the retro- active effect of punitive verdicts upon special complaints. The probable consequence is well stated in a case in which action was brought against a city for neglect to construct a proper system of drainage. " Any street may be complained of as being too steep or too level ; gutters as being too deep or too shallow ; or as being pitched in a wrong direction ; and there may be evidence that these things were carelessly resolved upon, and then a tribunal that is foreign to the municipal system will be allowed to inter- Carr v. Northern Liberties, 35 Pa. St. 824; Fair v. Philadelphia, 88 Pa. St. 809; Collins v. Philadelphia, 93 Pa. St. 272; Lynch v. New York, 76 N. Y. 60; Larkin v. Saginaw, 11 Mich. 88 ; De- troit i>. Beckman, 84 Mich. 125 ; Lansing V. Toolan, 37 Mich. 152 ; Davis v. Jackson, 61 Mich. 530 ; Foster v. St. Louis, 4 Mo. App. 564 ; Denver v. Capelli, 4 Col. 25 ; 8. c. 34 Am. Rep. 62 ; Allen v. Chippewa Falls, 52 Wis. 430 ; McClure v. Redwing, 28 Minn. 186; French v. Boston, 129 Mass. 592; b. c. 37 Am. Rep. 393; Johns- ton V. Dist. Columbia, 118 U. S. 19. A city is not liable if in rebuilding a walk an abutter follows the original plan. Urquhart v. Ogdensburg, 91 N. Y. 67. But if he deviates from it, the fact that the city suffers the walk to remain does not constitute an adoption of it. Id. 97 N. Y. 238. In Kansas a city may be liable if the plan is manifestly unsafe. Gould V. Topeka, 82 Kan. 485. In Indiana it is liable for negligence in plan, but not for mere errors of judgment. Seymour v. Cummins, 119 Ind. 148 ; Rice v. Bvans- ville, 108 Ind. 7 ; Terre Haute v. Hud- nut, 112 Ind. 642. In Hill v. Boston, 122 Mass. 844 ; B. o. 23 Ani. Rep. 332, a child attending one of the public schools in the third story of a school building fell over the railing to the staircase, and brought suit for the consequent injury, alleging that the railing was made dan- gerously low. The court held no such action maintainable, and asserted the "general doctrine that a j^rivate action cannot be maintained against a town or other quasi corporation for a neglect of corporate duty, unless such action is given by statute ; " citing White v. Phillipston, 10 Met. 108; Sawyer v. Northfleld, 7 Cush. 490 ; Reed v. Belfast, 20 Me. 246 ; Eastman v. Meredith, 36 N. H. 284 ; Hyde V. Jamaica, 27 Vt. 448 ; Chidsey v. Can- ton, 17 Conn. 475 ; Taylor v. Peckham, 8 B. I. 849 ; B. c. 5 Am. Rep. 578 ; Bartlett V. Crozier, 17 Johns. 439 ; Freeholders w. Sussex, 18 N. J. 108 ; Warbiglee v. Los Angeles, 45 Cal. 36 ; Highway Commis- sioners V. Martin, 4 Mich. 557, and a great number of other cases. It is also said in the same case that, in Massachusetts, the same doctrine is applied to incorporated cities. See further Hyde v. Jamaica, 27 Vt. 443; State v. Burlington, 36 Vt. 521 ; Chidsey V. Canton, 17 Conn. 475 ; Taylor V. Peckham, 8 R. I. 849; s. c. 5 Am. Rep. 578; If the water of a stream be- comes polluted by the emptying into it of city sewers, bo that a riparian propri- etor cannot use it in his business as he has* beeu accustomed to do, he cannot recover against the city for the pollution, so far as it is attributable to the plan of sewerage adopted by the city, but he can recover so far as it is attributable to the improper construction or unreasonable use of the sewers, or the negligence or other fault of the city in the care and management of them. Merrifield v. Wor- cester, 110 Mass. 216; b. c. 14 Am. Rep. 592, citing Emery v. Lowell, 104 Mass. 13; Child v. Boston, 4 Allen, 41. But a city may not empty a sewer into a mill pond without acquiring the right in some lawful way. Vale Mills v, Nashua, 63 N. H. 136. 256 CONSTITUTIONAL LIMITATIONS. [CH. VIII. vene and control the town officers. And the end is not yet ; for if a regulation be altered to suit the views of one jury, the altera- tion may give rise to another case, in which the new regulation will be likewise condemned. This theory is so vicious that it cannot possibly be admitted." ^ The alternative is — and the only course consistent with principle — to leave the municipal corporation to judge finally in the exercise of such political power as has been confided to it.^ And as the State is not responsible 1 Carr v. Northern Liberties, S5 Pa. St. 824, 329. See Detroit v. Beckman, 34 Micli. 125. 2 Louisville v. Hyatt, 2 B. Mon. 177 ; 8. 0. 36 Am. Deu. 594. Cities are under a political obligation to open such streets and build such market-houses as the con- venience of the community requires ; but they cannot be compelled to perform these duties, or be held responsible for the non-performance. Joliet v. Verley, 35 111. 58. See, further, Little Rock v. Wil- lis, 27 Ark. 572; Duke v. Eome, 20 Ga. 635; Tate v. Railroad Co., 64 Mo. 149; Bennett v. New Orleans, 14 La. Ann. 120 ; Commissioners v. Duckett, 20 Md. 468; Randall v. Eastern R. Corp., 100 Mass. 276 ; Hughes v. Baltimore, Taney, 243 ; Weightman o. Washington, 1 Black, 39. A city is not liable to an abutter for al- lowing a street to be used for market purposes. Henkel v. Detroit, 49 Mich. 249. But tills doctrine does not deprive an individual of remedy when by reason of tlie negligent construction of a public work his property is injured, or wlien the necessary result of its construction is to flood or otherwise injure his property in a manner that would render a private in- dividual liable. See Van Pelt w. Daven- port, 40 Iowa, 308 ; s. c. 20 Am. Rep. 622, and note, p. 626 ; Merrifield v. Worcester, 110 Mass. 216; s. c. 14 Am. Rep. 592; Mayo V. Springfield, 1.36 Mass. 10 ; Wey- niann v. Jefferson, 61 Mo. 65; Broad- well V. Kansas City, 75 Mo. 213 ; Union V. Durkes, .38 N. .7. 21; Hewison v. New Haven, 37 Conn. 475 ; s. c. 9 Am. Rep. 342; Hines v. Lockport, 50 N. Y. 236; Hardy ». Brooklyn, 90 N. Y.435; Weight- man V. Washington, 1 Black, 39; Sim- mer V. St. Paul, 23 Minn. 408; Rosa v. Clinton, 46 Iowa, 606 ; Inman v. Tripp, 11 R. 1. 520 ; Damour v. Lyons City, 44 Iowa, 276 ; Thurston v. St. Joseph, 51 Mo. 510; B. c. 11 Am. Rep. 463; Little Rock v. Willis, 27 Ark. 572; Prineeton v. Gieske, 93 Ind. 102; Denver c Rhodes, 9 Col. 554; Keating v. Cincinnati, 38 Ohio, St. 141 ; Mayor, &o. Savannah v. Spears, 66 Ga. 304. A city is liable for negligence in repairing a sewer. Fort Wayne p. Coombs, 107 Ind. 75; Kranz v. Mayor, &c. of Baltimore, 64 Md. 491 ; Stanch- field 1'. Newton, 142 Mass. 110. And a State may be, if it has assumed to make one. Ballou v. State, 111 N. Y. 496. If a city cuts a sewer in such a manner as to cause the collection of a large quantity of water which otherwise would not have flowed there, and to cast it upon the prem- ises of an individual to his inj ury, this is a trespass for which the city is liable. Ashley v. Port Huron, 35 Mich. 296, cit- ing many cases. See also Bloomington V. Brokaw, 77 111. 194 ; Elgin v. Kimball, 90 111. 356 ; Dixon e. Baker, 65 111. 518 ; s. c. 16 Am. Rep. 591 ; Rowe v. Ports- mouth, 56 N. H. 291 ; s. c. 22 Am. Rep. 464 ; Burton v. Chattanooga, 7 Lea, 739 ; Rhodes v. Cleveland, 10 Ohio, 159 ; s. c. 36 Am. Dec. 82 ; West Orange «. Field, 37 N. J. Eq. 600 ; Crawfordsville ». Bond, 96 Ind. 236 ; Lehn v. San Francisco, 66 Cal. 76 ; Rychlicki v. St. Louis, 98 Mo, 497 ; Blakely v. Devine, 36 Minn. 63 • Seifert v. Brooklyn, 101 N. Y. 136. As to the liability for increasing the flow of surface water on land by grad> ing streets, compare Bronson v. Walling- ford, 54 Conn. 513 ; Stejvart v. Clinton, 79 Mo. 603 ; Kehrer v. Richmond, 81 Va. 745;' Meth. Ep. Ch. v. Wyandotte, .31 Kan. 721 ; Morris v. Council BlufEa, 67 Iowa, 343 ; Kcnnison v. Beverly, 146 Mass. 467 ; Heth v. Fond du Lac, 63 Wis. 228, where it was denied, with Peters v. Fergus Falls, 35 Minn. 549 ; Gray v. Knox- ville, 85 Tenn. 99 ; GiUuly v. Madison, 63 Wis. 518; Addy v. Janesville, 70 Wis. 401, where it was sustained. CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 257 for the acts or neglects of public officers in respect to the duties imposed upon them for the public benefit, so one of these corpora- tions is not liable to private suits for either the non-performance or the negligent performance of the public duties which it is re- quired to assume, and does assume, for the general public, and from which the corporation itself receives neither profit nor special privilege.^ And the same presumption that legislative action has been devised and adopted on adequate information and under the influence of correct motives, will be applied to the discretionary action of municipal bodies, and of the State legislature, and will preclude, in the one case as in the other, all collateral attack.^ 1 Eastman v. Meredith, 36 N. H. 284 ; Hill V. Boston, 122 Mass. 844 ; s. c. 23 Am. Rep. 332. Nor does it change the rule that the duty is not specially imposed, but ia assumed under a general lavr. Wixon V. Newport, 13 R. I. 454. A city is not liable for the negligent manage- ment of its hospitals : Richmond v. Long, 17 Gratt. 375 ; Benton v. Trustees, &c., 140 Mass. 18 ; or a county for personal in- juries sustained by reason of the imper- fect construction of its court-house. Ein- caid V. Hardin, 63 Iowa, 430; s. c. 36 Am. Rep. 236 ; Hollenbeck v. Winnebago Co., 95 111. 148; s. o. 35 Am. Rep. 161. See, further, Little v. Madison, 49 Wis. 605 ; 8. c. 85 Am. Rep. 793 ; Dawson v. Aurelius, 49 Mich. 479. And compare post 300 to 808, and notes. A city is not liable for the torts of its police offi- cers : Cook V. Macon, 64 6a. 468 ; M'Elroy V. Albany, 65 Ga. 387 ; s. o. 38 Am. Rep. 791 ; Grumbine v. Washington, 2 Mc- Arthur, 578 ; s. o. 29 Am. Rep. 626 ; Har- man v. Lynchburg, 33 Gratt. 37; But- trick V. Lowell, 1 Allen, 172 ; Elliott v. Philadelphia, 75 Pa. St. 347 ; Norristown V. Fitzpatrick, 94 Pa. St. 121 ; Calwell v. Boone, 51 Iowa, 687 ; Attaway v. Carters- ville, 68 Ga. 740; Worley v. Columbia, 88 Mo. 106 ; or for their negligence : Pollock's Adm'r v. Louisville, 13 Bush, 221 ; B. c. 26 Am. Rep. 260, and note ; Little V. Madison, 49 Wis. 605 ; Jolly v. Hawesville, 12 S. W. Rep. 313 (Ky.); but see contra, Carrington v. St. Louis, 89 Mo. 208 ; or for the negligence of its firemen: Burrillv. Augusta, 78 Me. 118; Welsh V. Rutland, 66 Vt. 228; Wilcox V. Chicago, 107 III. 834 ; Grube v. St. Paul, 34 Minn. 402 ; or for the torts of Other officers : Hunt v. Boonville, 65 Mo. 620 ; s. c. 27 Am. Rep, 299 ; Wallace v. 17 Menasha, 48 Wis. 79 ; s. c. 33 Am. Rep. 804 ; Trustees v. Schroeder, 58 111. 363 ; Cumberland v. Willlson, 50 Md. 188; Cooney v. Hartland, 95 111. 516; Corsi- cana v. White, 57 Tex. 382 ; or for their errors or neglects : Wallace v. Menasha, 48 Wis. 79 ; s. o. 33 Am. Rep. 804 ; Col- lins «. Philadelphia, 93 Pa. St. 272 ; Hart V. Bridgeport, 13 Blatch. 289 ; McCarthy V. Boston, 185 Mass. 197 ; Tindley v. Salem, 137 Mass. 171 ; Summers v. Com'rs Daviess Co., 103 Ind. 262; Abbett v. Com'rs Johnson Co., 114 Ind. 61 ; Wake- field V. Newport, 60 N. H. 374 ; Condict V. Jersey City, 46 N. J. L. 167 ; Donnelly V. Tripp, 12 R. I. 97 ; but see Sprague v. Tripp, 13 B. I. 38 ; or for illegal action of officers under an illegal ordinance. Tram- mell V. Russellville, 34 Ark. 105 ; s. o. 36 Am. Rep. 1. But it is liable if in obe- dience to orders an officer acts under such ordinance. Durkee v, Eenoslia, 69 Wis. 123. And it may be liable if the negligent person is to be regarded as its servant, and not as a public officer. Mul- cairns v. Janesville, 67 Wis. 24 ; Waldron V. Haverhill, 143 Mass. 682 ; Perkins v. Lawrence, 136 Mass. 805 ; Semple v. Vicksburg, 62 Miss. 63. In the manage- ment of the private property held by the corporation for its own profit or advan- tage, it is held to the same responsibility with private citizens. Moulton v. Scar- borough, 71 Me. 267 ; s. c. 86 Am. Rep. 308, and cases cited ; Rowland v. Kala- mazoo Supts., 49 Mich. 663. So if the city lets a public building for hire, it is liable for negligence in managing it. Worden v. New Bedford, 131 Mass. 23. See also Toledo v. Cone, 41 Ohio St. 149. '•> Milhau V. Sharp, 16 Barb. 193 ; New York, &c. R. R. Co. v. New York, 1 Hil- 258 CONSTITUTIONAL LIMITATIONS. [CH. VIII. Among the implied powers of such an organization appears to be that of defending and indemnifying its officers where they have incurred liability in the bona fide discharge of their duty. It has been decided in a case where irregularities had occurred in the assessment of a tax, in consequence of which the tax was void, and the assessors had refunded to the persons taxed the moneys which had been collected and paid into the town, county, and State treasuries, that the town had authority to vote to raise a sum of money in order to refund to the assessors what had been so paid by them, and that such vote was a legal promise to pay, on which the assessors might maintain action against the town. " The general purpose of this vote," it was said, " was just and wise. The inhabitants, finding that three of their townsmen, who had been elected by themselves to an office, which they could not, without incurring a penalty, refuse to accept, had innocently and inadvertently committed an error which, in strictness of law, an- nulled their proceedings, and exposed them to a loss perhaps to the whole extent of their property, if all the inhabitants individ- ually should avail themselves of their strict legal rights, — find- ing also that the treasury of the town had been supplied by the very money which these unfortunate individuals were obliged to refund from their own estates, and that, so far as the town tax went, the very persons who had rigorously exacted it from the assessors, or who were about to do it, had themselves shared in due proportion the benefits and use of the money which had been paid into the treasury, in the shape of schools, highways, and various other objects which the necessities of a municipal institu- tion call for, — concluded to reassess the tax, and to provide for its assessment in a manner which would have produced perfect justice to every individual of the corporation, and would have pro- tected the assessors from the effects of their inadvertence in the assessment which was found to be invalid. The inhabitants of the town had a perfect right to make this reassessment, if they had a right to raise the money originally. The necessary sup- plies to the treasury of a town cannot be intercepted, because of an inequality in the mode of apportioning the sum upon the indi- viduals. Debts must be incurred, duties must be performed, by every town ; the safety of each individual depends upon the execution of the corporate duties and trusts. There is and must be an inherent power in every town to bring the money necessary for the purposes of its creation into the treasury ; and if its course is obstructed by the ignorance or mistakes of its agents, they may ton, 562; Buelt v. Ball, 20 Iowa, 282; pare State B.Cincinnati Gas Co., 18 Ohio; Freeport v. Marks, 69 Pa. St. 263. Com- St. 262. See cases ante, pp. 220-222. CH. VIII.] THE GEADES OF MUNICIPAL GOVEENMENT. 259 proceed to enforce the end and Object by correcting the means ; and whether this be done by resorting to their original power of voting to raise money a second time for the same purposes, or by directing to reassess the sum before raised by vote, is immaterial'; perhaps the latter mode is best, at least it is equally good." i It has also been held competent for a town to appropriate money to indemnify the school committee for expenses incuri-ed in defending an action for an alleged libel contained in a report made by them in good faith, and in which action judgment had been rendered in their favor.2 And although it should appear that the officer had exceeded his legal right and authority, yet, if he has acted in good faith in an attempt to perform his duty, the town has the right to adopt his act and to bind itself to indemnify him.^ And perhaps the legislature may even have power to com- 1 Pef Parker, Ch. J., in Nelson ». Mil- ford, 7 Pick. 18, 23. See also Baker o. Windham, 13 Me. 74 ; Fuller u. Groton, 11 Gray, 340 ; Board of Commission- ers u. Lucas, 98 U. S. 108; State «. Hammonton, 38 N. J. 430 ; s. c. 20 Am. Eep. 404; Miles v. Albany, 59 Vt. 79. The duty, however, must have been one authorized by law, and the mat- ter one in which the corporation had an interest. Gregory v. Bridgeport, 41 Conn. 7a ; 8. c. 19 Am. Uep. 485. In Bristol v. Johnson, 34 Mich. 123, it appeared that a township treasurer had been robbed of town moneys, but had accounted to the township therefor. An act of the legis- lature was then obtained for refunding this sum to him by tax. Held, not jus- tified by the constitution of the State, which forbids the allowance of demands against the public by the legislature. See People V. Supervisor of Onondaga, 16 Mich. 254. A municipal corporation, it is said, may offer rewards for the detection of offenders within its limits ; but its prom- ise to reward an officer for that which, without such reward, it was his duty to do, is void. Dillon, Mun. Corpt § 91, and cases cited. And see note, p. 261, post. 2 Fuller V. Groton, 11 Gray, 340. See also Hadsell v. Inhabitants of Hancock, 3 Gray, 526 ; Pike v. Middleton, 12 N. H. 278. 8 A surveyor of highways cut a drain for the purpose of raising a legal question as to the bounds of the highway, and the town appointed a committee to defend an action brought against the surveyor therefor, ahd voted to defray the expenses incurred by the committee. By the court: "It is the duty of a town to repair all highways within its bounds, at the ex- pense of the inhabitants, so that the same may be safe and convenient for travellers ; and we think it has the power, as incident to this duty, to indemnify the surveyor, or other agent, against any charge or lia- bility he may incur in the bona fide dis- charge of this duty, although it may turn out on investigation that he mistook his legal rights and authority. The act by which the surveyor incurred a liability was the digging a ditch, as a drain for the security of the highway ; and if it was done for the purpose of raising a legal question as to the bounds of the highway, as the defendants offered to prove at the trial, the town had, never- theless, a right to adopt the act, for they were interested in the subject, be- ing bound to keep the highway in repair. They had, therefore, a right to deter- mine Whether they would defend the surveyor or not ; and having determined the question, and appointed the plaintiffs a committee to carry on the defence, they cannot now be allowed to deny their lia- bility, after the committee have paid the charges incurred under the authority of the town. The town had a right to act on the subject-matter which was within their jurisdiction ; and their votes are binding and create a legal obligation, al- though they were under no previoiis obli- gation to indemnify the surveyor. That towns have an authority to defend and indemnify their agents who may incur 260 CONSTITUTIONAL LIMITATIONS. [CH. VIIL pel the town, in such a case, to reimburse its officers the expenses incurred by them in the honest but mistaken discharge of what they believed to be their duty, notwithstanding the town, by vote, has refused to do so.^ Construction of Municipal Powers. The powers conferred upon municipalities must be construed with reference to the object of their creation, namely, as agencies of the State in local government.^ The State can create them for no other purpose, and it can confer powers of government to no other end, without at once coming in conflict with the consti- a liability by an inadvertent error, or in the performance of their duties imposed on them by law, is fully maintained by the case of Nelson v. Milford, 7 Pick. 18." Bancroft v. Lynnfield, 18 Pick. 566, 568. And see Briggs v. Whipple, 6 Vt. 95 ; Sherman v. Carr, 8 E. I. 431. A collector may be indemnified for public money stolen from him. Fields v. Highland Co. Commissioners, 36 Ohio St. 476. Com- pare Bristol u. Johnson, 34 Mich. 123. 1 Guilford v. Supervisors of Chenango, 13 N. Y. 143. See this case commented upon by Lyon, J., in State v. Tappan, 29 Wis. 664, 680. On the page last men- tioned it is said : " We have seen no case, except in the courts of New York, which holds that such moral obligation gives the legislature povi-eir to compel payment." The case in New York is referred to as authority in New Orleans v. Clark, 95 TJ. S. 644. Where officers make them- selves liable to penalties for refusal to perform duty, the corporation has no au- thority to indemnify them. Halstead v. Mayor, &c. of New York, 3 N. Y. 430 ; Merrill v. Plainfield, 45 N. H. 126. See Frost V. Belmont, 6 Allen, 152 ; People v. Lawrence, 6 Hill, 244 j Vincent v. Nan- tucket, 12 Cush. 103. " A somewhat peculiar question was involved in the case of Jones v. Rich- mond, 18 Gratt. 517. In anticipation of the evacuation of the city of Richmond by the Confederate authorities, and under the apprehension that scenes of disorder might follow which would be aggravated by tlie opportunity to obtain intoxicating liqubrs, the common council ordered the seizure, and destruction of all such liquors tfithin the city, and pledged the faith of the cit^ to the payment of the yalue. The Court of Appeals of Virginia after- wards decided that the city might be held liable on the pledge in an action of as- sumpsit. Rives, J., says : " By its charter the council is specially empowered to ' pass all by-laws, rules, and regulations which they shall deem necessary for the peace, comfort, convenience, good order, good morals, health, or safety of said city, or of the people or property therein.' It is hard to conceive of larger terms for the grant of sovereign legislative powers to the specified end than those thus em- ployed in the charter ; and they must be taken by necessary and unavoidable in- tendment to comprise the powers of emi-. nent domain within these limits of pre- scribed jurisdiction. There were two modes open to the council : first, to direct the destruction of these stores, leaving the question of the city's liability therefor to be afterwards litigated and determined j or secondly, assuming their liability, to contract for the values destroyed under their orders. Had they pursued the first mode, the corporation would have been liable in an action of trespass for the damages ; but they thought proper to adopt the latter mode, make it a matter of contract, and approach their citizens, not as trespassers, hut with the amicable prof- fer of a formal receipt and the plighted faith of the city for the piiyment. In this they seem to me to be well justified." Judge Dillon doubts the soundness of this decision. Dillon, Mun. Corp. § 371, note. The case seems to us analogous in princi- ple to that of the destruction of buildings to stop the progress of a fire. In each case private property is destroyed to an- ticipate and prevent an impending public calamity. See poU, pp. 646, 732, 733. CH. VIII.] THE GKADES OF MUNICIPAL GOVERNMENT. 261 tutional maxim, that legislative power cannot be delegated, or with other maxims designed to confine all the agencies of gov- ernment to the exercise of their proper functions. And wherever the municipality shall" attempt to exercise powers not within the proper province of local self-government, whether the right to do so be claimed under express legislative grant, or by implication from the charter, the act must be considered as altogether ultra vires, and therefore void. A reference to a few of the adjudged cases will perhaps best illustrate this principle. The common council of the city of Buffalo undertook to provide an entertainment and ball for its citizens and certain expected guests on the 4th of July, and for that purpose entered into contract with a hotel-keeper to provide the entertainment at his house, at the expense of the city. The entertainment was furnished and in part paid for, and suit was brought to recover the balance due. The city had authority under its charter to raise and expend moneys for vai'ious specified pur- poses, and also " to defray the contingent and other expenses of the city." But providing an entertainment for its citizens is no part of municipal self-government, and it has never been consid- ered, where the common law has prevailed, that the power to do so pertained to the government in any of its departments. The contract was therefore held void, as not within the province of the city government.^ ^ Hodges V. Buffalo, 2 Denio, 110. See cipality to bind itself by the ofEer of a also the case of New London v. Brainard, reward, see, further, Crawshaw o. Box- 22 Conn. 552, which follows and approves bury, 7 Gray, 374 ; Lee v. Flemingsburgh, this case. The cases differ in this only : 7 Dana, 28 ; Loveland v. Detroit, 41 Mich, that in the first, suit was brought to en- 867 ; Janvrin v. Exeter, 48 N. H. 83 ; Mur- force the illegal contract, while in the phy v. Jacksonville, 18 Fla. 818. An second the city was enjoined from paying ofScer cannot claim an offered reward for over moneys which it had appropriated merely doing his duty. Pool v. Boston, for the purposes of the celebration. The 5 Cush. 219. See Stamp v. Cass County, cases of Tash v. Adams, 10 Cush. 252 ; 47 Mich. 330. Nor, under its general au- Hood V. Lynn, 1 Allen, 10.3, and Austin v. thofity to raise money for " necessary Coggeshall, 12 R. I. 329 ; s. c. 34 Am. town charges," is a town authorized to Kep. 648, are to the same effect. A town, raise and expend moneys to send lobby- it has been held, cannot lawfully be as- ists to the legislature. Frankfort v. Win- sessed to pay a reward offered by a vote terport, 54 Me. 250 ; Mead i'. Acton, 139 of the town for the apprehension and Mass. 341. Nor, under like authority, to conviction of a person supposed to have furnish a uniform for a volunteer mili- committed murder therein. Grale v. South tary company. Claflin o. Hopkinton, 4 Berwick, 51 Me. 174. See also Hawk v. Gray, 502. Under power to raise money Marion County, 48 Iowa, 472 ; Hanger v. for celebration of holidays and " other Des Moines, 52 Iowa, 193 ; s. c. 36 Am. public purposes," it may raise it for pub- Rep. 266; Board of Commissioners v. lie concerts. Hubbard o. Taunton, 140 Bradford, 72 Ind. 455 ; 8. c. 37 Am. Rep. Mass. 467. Where a municipal corpora- 174 ; Patton v. Stephens, 14 Bush, 324. tion enters into a contract ultra vires, no Contra, Borough of York v. Forscht, 23 implied contract arises to compensate the Pa. St. 391. As to the power of a muni- contractor for anything lie may have done 262 CONSTITUTIONAL LIMITATIONS, [CH. VIII. The supervisors of the city of New York refused to perform a, duty imposed upon them by law, and were prosecuted severally and judgment recovered, for the penalty which the law imposed for such refusal. The board of supervisors then assumed, on be- half of the city and county, the payment of these judgments, together with the costs of defending the suits, and caused drafts to be drawn upon the treasurer of the city for these amounts. It was held that these drafts upon the public treasury to indemnify oflBcers for disregard of duty were altogether unwarranted and void, and that it made no difference that the officers had acted conscientiously in refusing to perform their duty, and in the hon- est belief that the law imposing the duty was unconstitutional. The city had no interest in the suits against the supervisors, and appropriating the public funds to satisfy the judgments and costs was not within either the express or implied powers conferred upon the board.^ It was in fact appropriating the public money for private purposes, and a tax levied therefor must consequently be invalid, on general principles controlling the right of taxation, which will be considered in another place. In an Iowa case it is said : " No instance occurs to us in which it would be competent for [a municipal corporation] to loan its credit or make its accom- modation paper for the benefit of citizens, to enable them to execute private enterprises ; " ^ and where it cannot loan its credit to private undertakings, it is equally without power to appropriate the moneys in its trea,sury for such purposes, or by the conduct of its officers to subject itself to implied obligations.^ under it, notwithstanding the corpora^ 1873, with note by Judge Redfleld ; s. c. tion may have reaped a benefit therefrom. 11 Am. Eep. 185. McSpedon v. New York, 7 Bosw. 601 ; » <■ jn determining whether the sub- McDonald V. Mayor, 68 N. Y. 23 ; Zott- ject-matter is within the legitimate au- man V. San Francisco, 20 Cal. 96; Niles thority of thetown, oneof the tests is to Water Works v. Mayor, 59 Mich. 811. ascertain whether the expenses were in- Compare East St. Louis v. East St. L., &e. curred in relation to a subject specially Co. 19 111. App. 44 ; Montgomery v. Mont- placed by law in other hands. ... It. is gomery Water Works, 79 Ala. 233. a decisive test against the validity of all 1 Halsteadi). Mayor, &c. of New York, grants of money by towns for objects 8 N. Y. 430. See a similar case in People liable to that objection, but it does not V. Lawrence, 6 Hill, 244. See also Car- settle questions arising upon expenditures roll V. St. Louis, 12 Mo. 444 ; Vincent v, for objects not specially provided for. In Nantucket, 12 Cush. 103 ; Parsons v. Go- such cases the question will still recur, shen, 11 Pick; 396; Merrill t. Plainfleld, whether the expenditure was within the 45 N. H. 126. jurisdiction of the town. It may be safely ' • 2 Clark V. Pes Moines, 19 Iowa, 199, assumed that, if the subject of the ex- 224; Carter v. Dubuque, 35 Iowa, 416. penditure be in furtherance of some duty See Tyson v. School Directors, 51 Pa. St. enjoined by statute, or in exoneration of 9; Freeland v. Hastings, 10 Allen, 670; the citizens of the town from a liability to Thompsons. Pittston, 59 Me. 546; Kelly a common burden, a contract made in V. Marshall, 69 Pa. St, 319 ; Allen v. Jay, reference to it will be valid and binding 60 Me. 124 ; s. c. Am. Law Beg,, Aug. upon the town." Allen v. Taunton, 19 CH. VIII.J THE GEADES OF MUNICIPAL GOVERNMENT. 263 The powers conferred upon the municipal governments must also be construed as confined in their exercise to the territorial limits embraced within the municipality ; and the fact that these powers are conferred in general terms will not warrant their exer- cise except within those limits. A general power " to purchase, hold, and convey estate, real and personal, for the public use " of the corporation, will not authorize a purchase outside the corpo- rate limits for that purpose.^ Without some special provision they cannot, as of course, possess any control or rights over lands lying outside;''' and the taxes they levy of their own authority and the moneys they expend, must be for local purposes only.^ But the question is a very different one how far the legislature of the State may authorize the corporation to extend its action to objects outside the city limits, and to engage in enterprises of a public nature which may be expected to benefit the citizens of the municipality in common with the people of the State at large, and also in some special and peculiar manner, but which never- theless are not under the control of the corporation, and are so far aside from the ordinary purposes of local governments that assistance by the municipality in such enterprises would not be warranted under any general grant of power for municipal government. For a few years past the sessions of the legisla- tive bodies of the several States have been prolific in legislation which has resulted in flooding the country with municipal secur- ities issued in aid of works of public improvement, to be owned, controlled, and operated by private parties, or by corporations created for the purpose; the works themselves being designed for the convenience of the people of the State at large, but being nevertheless supposed to be specially beneficial to certain locali- ties because running near or through them, and therefore justify- Pick. 485, 487. See Tucker v. Virginia Bullock v. Curry, 2 Met. (Ky.) 171 ; City, 4 Nev. 20. It is no objection to the Weaver v. Cherry, 8 Ohio, N. s. 664 ; validity of an act which authorizes an ex- North Hempstead v. Hempstead, Hopk. penditure for a town-Iiall that rooms to 288 ; Concord v. Boscawen, 17 N. H. 466 ; be rented for stores are contained in it. Coldwater v. Tucker, 86 Mich. 474. A White V. Stamford, 37 Conn. 678. city may be authorized to take land out- ' Riley v. Bochester, 9 N. Y. 64. It is side for a park. Matter of Application competent for a municipal corporation to of Mayor, 99 N. Y. 669, purchase land outside to supply itself ' In Parsons v. Goshen, 11 Pick. 396, with water. Newman v. Ashe, 9 Bax. the action of a town appropriating money 380. Or to provide drainage. Coldwater in aid of the construction of a county 0. Tucker, 36 Mich. 474 ; B. c. 24 Am. road was held void and no protection to Bep. 601. See Bochester v. Rush, 80 the oflScers wlio had expended it. See N. Y. 302 ; Houghton v. Huron Copper also Concord v. Boscawen, 17 N. H. 465. M. Co., 67 Mich. 647. A town cannot lay a tax for the bene- 2 Per Kent, Chancellor, Denton w. fit of a cemetery which it does not con- Jackson, 2 Johns. Ch. 320. And see trol. Luques v. Dresden, 77 Me. 186. 264 CONSTITUTIONAL LIMITATIONS. [CH. VIII. ing, it is supposed, the imposition of a special burden by taxation upon such localities to aid in their construction.^ We have elsewhere ^ referred to cases in which it has been held that the legislature may constitutionally authorize cities, townships, and counties to subscribe to the stock of railroad companies, or to loan them their credit, and to tax their citizens to pay these subscrip- tions, or the bonds or other securities issued as loans, where a peculiar benefit to the municipality was anticipated from the improvement. The rulings in these cases, if sound, must rest upon the same right which allows such municipalities to impose burdens upon their citizens to construct local streets or roads, and they can only be defended on the ground that " the object to be accomplished is so obviously connected with the [municipality] and its interests as to conduce obviously and in a special manner to their prosperity and advancement." » But there are authorities 1 In Merrick v. Inhabitants of Am- herst, 12 Allen, 500, it was held compe- tent for the legislature to authorize a town to raise money by taxation for a State agricultural college, to be located therein. The case, however, we think, stands on different reasons from those where aid has been voted by municipali- ties to public improvements. See it ex- plained in Jenkins v. Andover, 103 Mass. 94. And see similar cases referred to, post, p. 281, note. 2 Ante, pp. 189, 140. 8 Talbot V. Dent, 9 B. Monr. 526. See Hasbrouck u. Milwaukee, 13 Wis. 37. It seems not inappropriate to remark in this place that the three authors who have treated so ably of municipal consti- tutional law (Mr. Sedgwick, Stat. & Const. Law, 464), of railway law (Judge Kedfleld), and of municipal corporations (Judge Dillon), have all united in con- demning this legislation as unsound and unwarranted by the principles of consti- tutional law. See the views of the two writers last named in note to the case of People V. Township Board of Salem, 9 Am. Law Reg. 487. And Judge Dillon well remarks in his Treatise on Municipal Corporations (§ 104) that, '-' regarded in the light of its eflects, there is little hesi- tation in affirming that this invention to aid private enterprises has proved itself baneful in the last degree." If we trace the beginning of this le- gislation, we shall find it originating at a time when there had been little occasion to consider with care the limitations to the functions^ of municipal government, because as yet those functions had been employed with general caution and pru- dence, and no disposition had been mani- fested to stretch their powers to make them embrace matters not usually recog- nized as properly and legitimately falling within them, or to make use of the muui- eipal machinery to further private ends. Nor did the earliest decisions attract much'attention, for they referred to mat- ters somewhat local, and the spirit of speculation was not as yet rife. When the construction of railways and canal? was first entered upon by an expenditure of public funds to any considerable extent, the States themselves took them in charge, and for a time appropriated large sums and incurred immense debts in enter- prises, some of which were of high im- portance and others of little value, the cost and management of which threatened . them at length with financial disaster, bankruptcy, and possible repudiation. No long experience was required to de- monstrate that railways and canals could not be profitably, prudently, or safely managed by the shifting administrations of State government ; and many of the States not only made provision for dispos- ing of their interest in works of public improvement, but, in view of a bitter ex- perience of the evils already developed in undertaking to construct and control them, they amended their constitutions so as to prohibit the State, when again the fever CH. YIII.] THE GRADES OF MUNICIPAL GOVEENMENT. 265 ■which dispute their soundness, and it cannot be denied that this species of legislation has been exceedingly mischievous in its of speculation should prevail, from engag- ing anew in such undertakings. All experience shows, however, that men are abundant who do not scruple to evade a constitutional provision which they find opposed to their desires, if tliey can possibly assign a plausible reason for doing so ; and in the case of the provi- sions before referred to, it was not long before persons began to question their phraseology very closely, not that they miglit arrive at the actual purpose, — which indeed was obvious enough, — but to discover wliether that purpose might not be defeated without a violation of the express terms. The purpose clearly was to remand all such undertakings to pri- vate enterprise, and to protect the citi- zens of the State from being taxed to aid them ; but while the State was forbidden to engage in such works, it was unfor- tunately not expressly declared that the several members of the State, in their corporate capacity, were also for- bidden to do so. The conclusion sought and reached was that the agencies of the State were at liberty to do what was for- bidden to the State itself, and the burden of debt which the State might not directly impose upon its citizens, it might indi- rectly place upon their shoulders by the aid of municipal action. The legislation adopted under this con- struction some of the courts felt com- pelled to sustain. Upon the accepted principle of constitutional law that no legislative authority is forbidden to the legislature unless forbidden in terms ; and the voting of municipal aid to rail- roads became almost a matter of course -wherever a plausible scheme could be presented by interested parties to invite it. In some localities, it is true, vigorous protest was made ; but as the handling of a large amount of public money was usually expected to make the fortune of the projectors, whether the enterprise proved successful or not, means either fair or unfair were generally found to overcome all opposition. Towns some- times voted large sums to railroads on the ground of local benefit where the actual and inevitable result was local injury, and the projectors of one scheme succeeded in obtaining and negotiating the bonds of one municipality to the amount of a quarter of a million dollars, which are now being enforced, though the work they were to aid was never seriously be- gun. A very large percentage of all the aid voted was paid to " work up the aid," sacrificed in discounts to purchasers of bonds, expended in worthless undertak- ings, or otherwise lost to the taxpayers ; and the cases might almost be said to be exceptional in which municipalities, when afterwards they were called upon to meet their obligations, could do so with a feel' ing of having received the expected con- sideration. Some State and territorial governors did noble work in endeavoring to stay this reckless legislative and mu- nicipal action, and 'some of the States at length rendered such action impossible by constitutional provisions so plain and positive that the most ingenious mind was unable to misunderstand or pervert them. When the United States entered upon a scheme of internal improvement, the Cumberland road was the first important project for which its revenues were de- manded. The promises of this enterprise were of continental magnificence and im- portance, but they ended, after heavy national expenditures, in a road no more national than a thousand others which the road-masters in the several States have constructed with the local taxes ; and it was finally abandoned to the States as a common highway. When next a great national scheme was broached, the aid of the general government was demanded by way of subsidies to private corpora- tions, who presented schemes of works of great public convenience and utility, which were to open upthe new Territories to improvement and settlement sooner than the business of the country would be likely to induce unaided private Capi- tal to do it, and which consequently ap- pealed to the imagination rather than to facts to demonstrate their importance, and afforded abundant opportunity for sharp operators to call to their assistance the national sentiment, then peculiarly strong and active by reason of the at- tempt recently made to overthrow the 266 CONSTITUTIONAL LIMITATIONS. [CH. TIIL results, that it has created a great burden of public debt, for which in a large number of cases the anticipated benefit was government, in favor of projects whose national importance in many cases the imagination alone could discover. The general result was the giving away of immense bodies of land, and in some oases the granting of pecuniary aid, with a recklessness and often with an appear- ance of corruption that at length startled the people, arid aroused a public spirit before which the active spirits in Con- gress who had promoted these grants, and sometimes even demanded them in the name of the poor settler in the wilderness who was unable to get his crops to mar- ket, were compelled to give way. The scandalous frauds connected with the Pacific Railway, which disgraced the nation in the face of the world, and the great and disastrous financial panic of 1873, were legitimate results of such subsidies ; but the pioneer in the wilder- ness had long before discovered that land grants were not always sought or taken with a view to an immediate appropria- tion to the roads for the construction of which they were nominally made, but that the result in many cases was that large tracts were thereby kept out of the mar- ket and from taxation, which otherwise would have been purchased and occupied by settlers who would have lessened his taxes by contributing their share to the public burdens. The grants, therefore, in such cases, instead of being at once devoted to improvements for the benefit of settlers, were in fact kept in a state of nature by the speculators who had se- cured them, until the improvements of settlers in their vicinity could make the grantees wealthy by the increase in value which such improvements gave to the land near them. In saying this the ad- mission is freely made that in many cases the grants were promptly and honestly appropriated in accordance with their nominal purpose ; but the general verdict now is that the system was necessarily corruptive and tended to invite fraud, and that some persons of influence man- aged to accumulate great wealth by grants indirectly secured to themselves under the unfounded pretence of a desire to aid and encourage the pioneers in the wilderness. Some States also have recently in their corporate capacity again engaged in issuing bonds to subsidize private cor- porations, with the natural result of se- rious State scandals. State insolvency, public discontent, and in some cases, it would seem, almostinevitable repudiation. Their governments, amid the disorders of the times, have fallen into the hands of strangers and novices, and the hobby of public improvement has been ridden furi- ously under the spur of individual greed. It has often been well remarked that the abuse of a power furnishes no argu- ment against its existence ; but a system so open to abuses may well challenge at- tention to its foundations. And when those foundations are examined, it is not* easy to find for them any sound support in the municipal constitutional law of this country. The same reasons which justify subsidies to the business of com- mon carriers by railway will support taxation in aid of any private business whatsoever. It is sometimes loosely said that rail- way companies are public corporations, but the law does not so regard them. It is the settled doctrine of the law that, like banks, mining companies, and man- ufacturing companies, they are mere private corporations, supposed to he or- ganized for the benefit of the individual corporators, and subject to no other pub- lic supervision or control than any other private association for business purposes to which corporate powers have been granted. Dartmouth College v. Wood- ward, 4 Wheat. 518; Bonaparte v. Cam- den & Amboy R. R. Co., Baldw. 216; Eustis V. Parker, 1 N. H. 273 ; Ohio, &o. R. R. Co. I). Ridge, 5 Blackf. 78 : Cox v. Louisville &c. R. R. Co., 48 Ind. 178, 189; Roanoke, &c. R. R. Co. v. Davis, 2 Dev. & Bat. 451 ; Dearborn ». Boston, C. & M. R. R. Co., 4 Post. 179; Trustees, &c. t>. Auburn, &c. R. R, Co., 3 Hill, 567 ; Tins- man V. Belvidere, &o. R. R. Co., 26 N. J. 148 ; Thorpe v. Rutland, &c. R. R. Co., 27 Vt. 140 ; Alabama R. R. Co. v. Kidd, 29 Ala. 221 ; Turnpike Co. v. Wallace, 8 Watts, 816 ; Seymour v. Turnpike Co., 10 Ohio, 477 ; Ten Eyck v. D. & R. Canal, 3 Harr. 200 ; Atlantic, &c. Telegraph Co. v. CH. Till.] THE GRADES OF MUNICIPAL GOVERNMENT. 267 never received, and that, as is likely to be the case -where munici- pal governments take part in projects foreign to the purposes of Chicago, &c. R, B. Co., 6 Biss. 158; A. & A. on Corp. §§ 30-86 ; Redf. on Railw. 0. 8, § 1 ; Keree on Railroads, 19, '20. Taxation to subsidize tlitjm uannut tlierefore be justified on tiie ground of any public cliarauter tliey possess, any more tban to subsidize banlsLS or mining companies. It is truly said that it has long been the settled doctrine tliat the right of eminent domain may be em- ployed in their behalf, and it has some- times been insisted with much earnestness that wiierever the State may aid an en- terprise under the right of eminent do- main, it may assist it by taxation also. But the right of taxation and the right of eminent domain are by no means co- extensive, and do not rest wholly upon like reasons. The former compels the citizen to contribute his proportion of the public burden ; the latter compels him to part with nothing for which he is not to receive pecuniary compensation. The tax in the one case is an exaction, the appropriation in the other is only a forced sale. To take money for private purposes under pretence of taxation is, as has been often said, but robbery and plunder ; to appropriate under the right of eminent domain for a private corpora- tion robs no one, because the corporation pays for what is taken, and in some cases, important to the welfare and pros- perity of the community, and where a public convenience is to be provided, — as in the case of a grist mill, — it has long been held competent to exercise the one power, while the other was conceded to be inadmissible. Few persons would at- tempt to justify a tax in aid of a mill- owner, on the ground that laws appro- priating lands for his benefit, but at his expense, have been supported. The truth is, the right to tax in favor of private corporations of any description must rest upon the broad ground that the power of the legislature, subject only to the express restrictions of the constitu- tion, is supreme, and that, in the lan- guage of some of the cases, " if there be the least possibility that making the gift will be promotive in any degree of the public welfare, it becomes a question of policy, and not of natural justice, and the determination of the legislature is con- clusive." (Post, p. 600.) But nothing is better settled on authority than that this strong language, though entirely true when it refers to the making provision for those things which it falls within the province of government to provide for its citizens, or to the payment for services performed for the State, or the satr isfaction of legal, equitable, or moral obligations resting upon it, is wholly inadmissible when the purpose is to im- pose a burden upon one man for the benefit of another. Many such cases might be suggested in which there would not only be a " possibility," but even a strong probability, that a small burden imposed upon the public to set an indi- vidual up in business, or to build him a house, or otherwise make him comforta- ble, would be promotive of the public wel- fare ; but in law the purpose of any such burden is deemed private, and the inci- dental benefit to the public is not recog- nized as an admissible basis of taxation. In Allen v. Inhabitants of Jay, 60 Me. 124, s. c. 11 Am. Rep. 185, it became necessary to reaffirm a doctrine, often de- clared by the courts, that however great was the power to tax, it was exceeded, and the legislature was attempting the exercise of a power not legislative in its character, when it undertook to impose a burden on the public for a private pur- pose. And it was also held that the raising of money by tax in order to loan the same to private parties to enable them to^ erect mills and manufactories in, such town, was raising it for a private purpose, and therefore illegal. Appleton, Ch. J., most truly remarks in that case, that " all security of private rights, all protection of private property, is at an end, when one is compelled to raise money to loan at the will of others for their own use and benefit, when tlie power is given to a majority to lend or give away the prop- erty of an unwilling minority." And yet how plain it is that the benefit of the local public might possibly have been pronioted by the proposed erections ! See, to the same effect, Loan Association v. Topeka, 20 Wall. 655, where the whole Bubjeuf: is carefully considered and pre- 268 CONSTITUTIONAL LIMITATIONS. [CH. VIIL their creation, it has furnished unusual facilities for fraud and public plunder, and led almost inevitably, at last, to discontent ; sometimes even to disorder and violence. In some of the recent revisions of State constitutions, the legislature has been expressly prohibited from permitting the municipalities to levy taxes or incur debts in aid of works of public improvement, or to become stockholders in private corporations.^ Assuming that any such subscriptions or securities may be authorized, the first requisite to their validity would seem, then, to be a special legislative authority to make or issue them ; an authority which does not reside in the general words in which the powers of local self-government are usually conferred,^ and sented with clearness and force, in an opinion by Mr. Justice Miller; also Com- mercial Bank v. Ida, 2 Dill. C. C. 363; 8. c. 9 Kan. 689 ; Weismer v. Douglas, 64 N. Y. 91 ; 8. 0. 21 Am. Rep. 586 ; Park- ersburg v. Brown, 106 U. S. 487; Cole v. La Grange, 118 U. S. 1, and cases cited ; Mather v. Ottawa, 114 111. 659. These cases are not singular : they are representative cases ; and they are cited only because they are among the most recent expressions of judicial opinion on the subject. With them may be placed Lowell V. Boston, 111 Mass. 454, s. o. 15 Am. Rep. 39, in which the Supreme Court of Massachusetts, after the great fire of 1872 in Boston, denied the power of the Commonwealth to permit taxation in order to loan the moneys out to the per- sons who had suffered by the fire. Like decisions are found in State v. Osawkee, 14 Kan. 418, and Feldman v. City Coun- cil, 23 S. C. 57. These decisions of emi- nent tribunals indicate a limit to legisla- tive {lower in the matter of taxation, and hold, what has been decided very many times before, that it is not necessary the constitution should forbid expressly the taxing for private purposes, since it is implied in the very idea of taxation that the purpose must be public, and a taking for any other purpose is unlawful confis- cation. Cooley on Taxation, 67 et seq. One difference there nnSoubtedly is between the case of a railroad corporation and a manufacturing corporation ; that there are precedents in favor of taxing for the one and not for the other. But if the precedents are a departure from sound principle, then, as in every other case where principle is departed from. evils were to have been expected. A catalogue of these would include the squandering of the public domain; tlie enrichment of schemers whose policy it has been, first, to obtain all they can by fair promises, and then avoid as far and as long as possible the fulfilment of the promises; the corruption of legislation; the loss of State credit; great public debts recklessly contracted for moneys often recklessly expended; public dis- content because the enterprises fostered from the public treasury and on the pre- tence of public benefit are not believed to be managed in the public interest; and, finally, great financial panic, collapse, and disaster. At such a cost has the strong expression of dissent which all the while has accompanied these precedents been disregarded and set aside. 1 The following States have such pro- visions in their constitutions : Colorado, Connecticut, Illinois, Mississippi, Mis- souri, and New Hampshire. Many of the State constitutions expressly forbid State aid to private corporations of any sort, and it is probable that their provisions are broad enough in some cases to pro- hibit aid by the municipalities also. 2 Bullock B. Curry, 2 Met. (Ky.) 171. A general power to borrow money or in- cur indebtedness to aid in the construc- tion of " any road or bridge " must be understood to have reference only to the roads or bridges within the municipality. Stokes V. Scott County, 10 Iowa, 166; State 0. Wapello County, 13 Iowa, 388 ; Lafayette v. Cox, 6 Ind. 38. Power to submit to village voters raising money for extraordinary purposes does not cover the submission of railroad aid. Perrin v. CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 269 one also which must be carefully followed by the municipality in all essential particulars, or the subscription or security will be void.^ And while mere irregularities of action, not going to the essentials of the power, would not prevent parties who had acted in reliance upon the securities enforcing them, yet as the doings of these corporations are matters of public record, and they have no general power to issue negotiable securities,^ any one who becomes holder of such securities, even though they be negotiable in form, will take them with constructive notice of any want of power in the corporation to issue them, and cannot enforce them when their issue was unauthorized.^ New London, 67 Wis. 416. There are decisions in the Supreme Court of the United States which appear to be to the contrary. The city charter of Muscatine conferred in detail the usual powers, and then authorized the city " to borrow money for any object in its discretion," after a vote of the city in favor of the loan. In Meyer v. Muscatine, 1 Wall. 884, the court seem to have construed this clause as authorizing a loan for any object whatever ; though such phrases are understood usually to be confined in their scope to the specific objects before enum- erated; or at least to those embraced within the ordinary functions of munici- pal governments. See Lafayette v. Cox, 5 Ind. 38. Tlie case in 1 Wallace was followed in Bogers v. Burlington, 8 Wall. 654, four justices dissenting. See also Mitchell V. Burlington, 4 Wall. 270. A municipal corporation having power to borrow money, it is held, may make its obligations payable wherever it shall agree. Meyer v. Muscatine, 1 Wall. 384 ; Lynde v. County, 16 Wall. 6. But some cases hold that such obligations can only be made payable at the corporation trea- sury, unless there is express legislative authority to make them payable else- where. People V. Tazewell County, 22 111. 147 ; Pekin w. Eeynolds, 31 111. 529. If the power to issue bonds is given, power to tax to meet them is impliedly given, unless a clear intent to the contrary is shown. Quincy v. Jackson, 113 U. S. 832. I See Harding v. Bockford, &c. B. E. Co., 65 111. 90 ; Dunnovan v. Green, 57 111. 63 ; Springfield, &o. E. R. Co. v. Cold Spring, 72 HI. 603; People v. County Board of Cass, 77 111. 438 ; Cairo, &c. E. E. Co. ». Sparta, 77 111. 605; George v. Oxford, 16 Kan. 72; Hamlin v. Meadville, 6 Neb. 227 ; McClure v. Oxford, 94 U. S. 429 ; Bates Co. v. Winters, 97 U. S. 83 ; Buchanan v. Litchfield, 102 U. S. 278 ; Bissell i». Spring Valley, 110 U. S. 162. 2 Thomson v. Lee County, 8 Wall. 327; Police Jury v. Britton, 15 Wall. 666; Wells V. Supervisors, 102 U. S. 626; Claiborne Co. v. Brooks, 111 U. S. 400 ; Carter Co. v. Sinton, 120 U. S. 517 ; Starin V. Genoa, 23 N. Y. 439 ; People v. Super- visors, 11 Cal.- 170 ; Dively v. Cedar Falls, 21 Iowa, 665 ; Smith v. Cheshire, 18 Gray, 318 ; People v. Gray, 23 Cal. 126. See Thomas v. Richmond, 12 .Wall. 849; Eatzenberger v. Aberdeen, 121 U. S. 172; Emery v. Mariaville, 56 Me. 316; Sher- rard v. Lafayette Co., 3 Dill. 236. The power to tax in aid of railroads does not necessarily give power to issue negoti- able bonds. Concord v. Robinson, 121 U. S. 165; Kelly v. Milan, 127 U. S. 189. Compare Savannah t>. Kelly, 108 U. S. 184 ; Richmond u. McGirr, 78 Ind. 192. ° There is considerable confusion in the cases on this subject. If the corpo- ration has no authority to issue negotia- ble paper, or if the ofiScers who assume to do so have no power under the charter for that purpose, there can be no doubt that the defence of want of power may be made by the corporation in any suit brought on the securities. Smith v. Cheshire, 18 Gray, 318 ; Gould v. Sterling, 23 N. Y. 456 ; Andover t>. Grafton, 7 N. H. 298 ; Clark v. Des Moines, 19 Iowa, 199; M'Pherson v. Foster, 43 Iowa, 48; Bissell V. Kankakee, 64 111. 249; Big Grove v. Wells, p6 111. 263; Wade «. La Moille, 112 111. 79; Blmwood v. Maroy, 92 U. S. 289 ; Concord v. Ports- mouth Savings Bank, 92 U. S, 626 ; St. 270 CONSTITUTIONAL LIMITATIONS. [CH. VIIL In some of the cases involving the validity of the subscriptions made or bonds issued by municipal corporations in aid of internal Joseph a. Rogers, 16 Wall. 644 ; Pendle- ton Co. u. Amy, 13 Wall. 297; Marsh V. Fulton Co., 10 Wall. 676; East Oak- land V. Skinner, 94 U. S. 255 ; South Ot- tawa V. Perkins, 94 U. S. 260 ; MoClure V. Oxford, 94 U. S.429. And in any case, if the holder has received the securities with notice of any valid defence, he takes them subject thereto. If the issue is witliout authority, the doctrine of pro- tection to a purchaser in good faith has no application. Merchants' Bank ». Ber- gen Co., 115 U. S. 384. But where the corporation has power to issue negotiable paper in some cases, and its officers have assumed to do so in cases not within the charter, whether a bona fide holder would be chargeable with notice of the want of authority in the particular case, or on the other hand, would be entitled to rely on the securities themselves as sufficient evidence that they were properly issued when nothing appeared on their face to apprise him of the contrary, is a ques- tion still open to some dispute. In Stoney v. American Life Insurance Co., 11 Paige, 635, it was held that a ne- gotiable security of a corporation which upon its face appears to have been duly issued by such corporation, and in con- formity with the provisions of its charter, is valid in the hands of a bona fide holder thereof without notice, although such se- curity was in fact issued for a purpose, and at a place not authorized by the char- ter of the company, and in violation of the laws of the State where it was actual- ly issued. In Gelpcke v. Dubuque, 1 Wall. 175, 203, the law is stated as follows : " When a corporation has power, under any circumstances, to issue negotiable se- curities, the bona fide holder has a right to presume they were issued under the circumstances which give the requisite authority, and they are no more liable to be impeached for any infirmity in the hands of such holder than any other com- mercial paper." See also Commissioners of Daviess Co. v. Aspinwall, 21 How. 364; Bissell v. JefEersonville, 24 How. 287 J Lexington v. Butler, 14 Wall. 282 ; Moran v. Commissioners of Miami Co., 2 Black, 722; De Voss v. Richmond, 18 Gratt. 838; San Antonio v. Lane, 32 Tex. 405; State o. Commissioners, 37 Ohio St. 526. In Farmers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 16 N. Y. 125, 129, it is said : " A citizen who deals directly with a corporation, or wh6 takes its negotiable paper, is presumed to know the extent of its corporate power. But when the paper is, upon its face, in all respects sucli as the corpo- ration has authority to issue, and its only defect consists in some extrinsic fact, — such as the purpose or object for which it was issued, — to hold that the person tafc ing the paper must inquire as to such ex- traneous fact, of the existence of which he is in no way apprised, would obviously conflict with the whole policy of the law in regard to negotiable paper." In Mad- ison & Indianapolis Railroad Co. v. The Norwich Savings Society, 24 Ind. 457, this doctrine is approved ; and a distinction made, in the earlier case of Smead ». In- dianapolis, &c. Railroad Co., 11 Ind. 104, between paper executed ultra vires and that executed within the power of the corporation, but, by an abuse of the power in that particular instance, was repudi- ated. In St. Joseph ti. Rogers, 16 Wall. 644, it was decided that where power is conferred to issue bonds, but only in a particular manner, or subject to certain regulations, conditions, or qualifications, and the bonds are actually issued with recitals showing compliance with the law, the proof that any of the recitals are in- correct will not constitute a defence to a suit on the bonds, " if it appears that it was the sole province of the municipal officers who executed the bonds to decide whether or not there had been an ante- cedent compliance with the regulation, condition, or qualification which it is al- leged was not fulfilled." And see Moran V. Commissioners of Miami Co., 2 Black, 722; Pendleton Co. v. Amy, 13 Wall. 297; Chute v. Winegar, 16 Wall. 355; Coloma «. Eaves, 92 U. S. 484 ; Venice V. Murdoch, 92 U. S. 494 ; Marcy v. Os- wego, 92 U. S. 637 ; Humboldt v. Long, 92 U. S. 642; Douglas Co. v. BoUes, 94 U. S. 104 ; Johnson Co. v. January, 94 U. S. 202; Scotland Co. v. Thomas, 94 U.S. 682 ; Wilson v. Salamanca, 99 U. S. 499; Menasha v. Hazard, 102 U. S. 81 ; hva.' CH. VIII.] THE GRADES OF MUNICIPAL GOVEENMEKT. 271 improvements, there has been occasion to consider clauses in the State constitutions designed to limit the power of the legislature coin V. Iron Co., 103 U. S. 412 ; Bonham V. Needles, 103 U. S. 648. That neither irregularities in issuing bonds nor fraud in obtaining them will be a defence in the hands of bona fide holders, see foregoing cases, and also Mazcy v. Williamson Co., 72 m. 207 ; Nicolay v. St. Clair, 3 Dillon, 163 ; £ast Lincoln v. Davenport, 94 U. S. 801 ; Copper v. Mayor, &c., 44 N. J. L. 634 ; Aberdeen v. Sykes, 59 Miss. 286 ; Lynchburg v. Slaughter, 75 Va. 67. See, further, that there may be an estoppel by the recitals in favor of a bona fide holder, Ottawa v. Nat. Bank, 105 U. §. 842; Pana v. Bowler, 107 U. S. 529; Sherman Co. v. Simons, 109 U. S. 735 ; New Providence v. Halsey, 117 U. S. 336 ; Oregon v. Jennings, 119 U. S. 74; State V. Montgomery, 74 Ala. 226; Shurtleff V. Wiscasset, 74 Me. 130. Such estop- pel only applies to matters of procedure which the corporate officers had author- ity to determine and certify. It cannot supply the lack of statutory authority : Northern Bank v. Porter Township, 110 U. S. 608; Dixon Co. v. Field, 111 U. S. 83 ; School District v. Stone, 106 U. S. 183; Parkersburg v. Brown, 106 U. S. 487; Hayes v. Holly Springs, 114 U. S. 120 ; nor avoid the effect of actual knowl- edge of invalidity. Ottawa v. Carey, 108 U. S. 110. A holder cannot recover if the bonds show on their face their issue under a void act: Cole v. La Grange, 113 U. S. 1 ; or show non-compliance with an enabling act: Gilson v. Dayton, 123 U. S. 59; or if, when they contain no recitals, their invalidity could be learned from the records. Merchants' Bank v. Bergen Co., 115 U. S. 384 ; Daviess Co. V. Dickinson, 117 II. S. 657. In Hal- stead V. Mayor, &c. of New York, 5 Barb. 218, action was brought upon warrants drawn by the corporation of New York upon its treasurer, not in the course of its proper and legitimate business. It was held that the corporation under its charter had no general power to issue negotiable paper, though, not being pro- hibited by law, it might do so for any debt contracted in the course of its proper legitimate business. But it was also held that any negotiable securities not issued by the defendants in their proper and legitimate business, were void in the hands of the plaintiff, although re- ceived by him without actual notice of their consideration. This decision was affirmed in 3 N. Y. 430. In Gould v. Town of Stirling, 23 N. Y. 456, it was held that where a town had issued nego- tiable bonds, which could only be issued when the written assent of two-thirds of the resident persons taxed in the town had been obtained and filed in the county clerk's office, the bonds issued without such assent were invalid, and that the purchaser of them could not rely upon the recital in the bonds that such assent had been obtained, but must ascertain for himself at his peril. Say the court : " One who takes a negotiable promissory note or bill of exchange, purporting to be made by an agent, is bound to inquire as to the power of the agent. Where the agent is appointed and the power conferred, but the right to exercise the power has been made to depend upon the existence of facts of which the agent may naturally be sup- posed to be in an especial manner cogni- zant, the bona fide holder is protected ; because he is presumed to have taken the paper upon the faith of the representa- tion of the agent as to those facts. The. mere fact of executing the note or bill amounts of itself, in such a case, to a rep- resentation by the agent to every person who may take the paper that the requisite facts exist. But the holder has no such protection in regard to the existence of the power itself. In that respect the sub- sequent bonafide holder is in no better sit- uation than the payee, except in so far as the latter would appear of necessity to have had cognizance of facts which the other cannot [must 1] be presumed to have known." And the case is distinguished from that of the Farmers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 16 N.Y. 125, where the extrinsic fact affecting the authority related to the state of ac- counts between the bank and one of its customers, which could only be known to the teller and other officers of the bank. See also Brady v. Mayor, &c. of New York, 2 Bosw. 173; Hopple v. Brown Township, 13 Ohio St. 311 ; Veederw. Lima, 19 Wis. 280. The subject is reviewed in' Clark v. 272 CONSTITUTIONAL LIMITATIONS. [CH. vin. to incur indebtedness on behalf of the State, and which clauses, it has been urged, were equally imperative in restraining indebted- ness on behalf of the several political divisions of the State. The Constitution of Kentucky prohibited any act of the legislature authorizing any debt to be contracted on behalf of the Common- wealth, except for certain specified purposes, unless provision should be made in such act for an annual tax sufficient to pay such debt within thirty years ; and the act was not to have effect unless approved by the people. It was contended that this pro- vision was not to apply to the Commonwealth as a mere ideal abstraction, unconnected with her citizens and her soil, but to the Commonwealth as composed of her people, and their territorial Des Moines, 19 Iowa, 199. The action was brought upon city warrants, negotia- ble in form, and of which the plaintiff claimed to be bona fide assignee, without notice of any defects. The city offered to show that the warrants were issued without any authority from the city council and without any vote of the council authorizing the same. It was held that the evidence shpuld have been admitted, and that it would constitute it complete defence. See further, Head V. Providence, ^c. Co., 2 Cranch, 127 ; Royal British Bank v. Turquand, 6 El. & Bl. 327 ; Knox County v. Aspinwall, 21 How. 539 : Bissell u. Jeffersonville, 24 How. 287 ; Sanborn v. Deerfield, 2 N. H. 251 ; Alleghany City v. McCIurkan, 14 Fa. St. 81; Morris Canal & Banking Co. V. Fisher, 9 N. J. Eq. 667 ; Clapp v. Cedar Co., 5 Iowa, 15; Commissioners, &c. V. Cox, 6 Ind. 403 ; Madison & In- dianapolis R. R. Co. V. Norwich Savings Society, 24 Ind. 457 ; Bird v. Daggett, 97 Mass. 494. It is of course impossible to reconcile these cases. In Cagwin v Han- cock, 84 N. Y. 532 ; s. c. 5 Am. & Eng. R. R. Cas. 150, on a review of the New York authorities it !s declared to be the law of that State that there can never be a bona fide holder of town bonds, within the meaning of the law applicable to ne- gotiable paper, as such bonds are always issued under special statutory authority, and are only valid when the statute is complied with. To the same effect are Craig ti. Andes, 93 N. Y. 405, and Lyons V. Chamberlain, 89 N. Y. 578. See Fish 0. Kenosha, 26 Wis. 2.3. That the powers of the agents of municipal corporations are matters of record, and the corporation not liable for an unauthorized act, see fur- ther Baltimore v. Eschbach, 18 Md. 276 ; Johnson u. Common Council, 16 Ind. 227. That bonds voted to one railroad com- pany and issued to another are void, see Big Grove o. Wells, 65 111. 203. Those who deal with a corporation must take notice of the restrictions in its charter, or in the general law, regarding the making of contracts. Brady v. Mayor, &c. of New York, 2 Bosw. 173; a. c. 20 N. Y. 312 ; Swift V. Williamsburg, 24 Barb. 427 ; Zabriskie v. Cleveland, &c. R. R. Co., 23 How. 381 ; Hull u. Marshall County, 12 Iowa, 142 ; Clark v. Des Moines, 19 Iowa, 199; McPherson v. Foster, 43 Iowa, 48; Marsh v. Supervisors of Fulton Co., 10 Wall. 676. If they are not valid, no sub- sequent ratification by the corporation can make them so. Leavenworth v. Ran- kin, 2 Kan. 357. If bonds are voted upon a condition, and issued before the condi- tion is complied with, this, as to bona fide holders, is a waiver of the condition. Chiniquy v. People, 78 III. 570. Compare Supervisors pf Jackson u. Brush, 77 111. 59. In some States, after paper has been put afloat under laws which the courts of the State have sustained, it is very justly held that the validity and obligation of such paper will not be suffered to be im- paired by subsequent action of the courts overruling their former conclusions. See Gelpcke v. Dubuque, 1 Wall. 175 ; Steines V. Franklin County, 48 Mo. 167 ; Osage, &c. R. R. Co V. Morgan County, 63 Mo. 156 ; Smith v. Clark Co., 54 Mo. 58 ; State V. Sutterfleld, 54 Mo. 391 ; Columbia Co. V. King, 13 Fla. 421 ; Same v. Davidson, 13 Fla. 482. CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 273 organizationa of towns, cities, and counties, which make up the State, and that it embraced in principle every legislative act which authorized a debt to be contracted by any of the local organiza- tions of which the Commonwealth was composed. The courts of that State hejd otherwise. " The clause in question," they say, " applies in terms to a debt contracted on behalf of the Common- wealth as a distinct corporate body ; and the distinction between a debt' on behalf of the Commonwealth, and a debt or debts on behalf of one county, or of any number of counties, is too broad and palpable to admit of the supposition that the latter class of debts was intended to be embraced by terms speciScally desig- nating the former only." ^ The same view has been taken by the courts of Iowa, Wisconsin, Illinois, and Kansas, of the provisions- in the constitutions of those States restricting the power of the legislature to contract debts on behalf of the State in aid of in- ternal improvements ; ^ but the decisions of the first-named State have since been doubted,^ and those in Illinois, it would seem, overruled.* In Michigan it has been held that they were inap- plicable to a constitution adopted with a clear purpose to preclude taxation for such enterprises.^ 1 Slack V. Railroad Co., 13 B. Monr. 1. 2 Dubuque Cbunty v. Railroad Co., 4 Greene (Iowa), 1 ; Clapp v. Cedar Cbunty, 6 Iowa, 15 ; Clark v, Janesville, 10 Wis. 136; Bushnell v. Beloit, 10 Wis. 195; Pretty man v. Supervisors, 19 III. 406; Robertson v. Rookford, 21 III. 451 ; Jolin- son V. Stark County, 24 111. 75; Perking V. Lewis, 24 111. 208 ; Butler v. Dunham, 27 111. 474 ; Leavenworth Co. v. Miller, 7 Kan. 479. ' State V. Wapello County, 13 Iowa, 388. And see People v. Supervisor, &c., 16 Mich. 254. *' In People o. Mayor, &c. of Cliicago, 61 111. 17,35, it iaheld expressly that tlie provision of the State constitution pro- hibiting the State from creating a ' debt exceeding fifty thousand dollars without the consent of the people manifested at a general election, would preclude the State from creating a like debt against a mu- nicipal corporation, except upon the like conditions. And it was pertinently said : "The protection of the whole implies necessarily the {wotection of alt its organ- ized parts, and the whole cannot be se- cure while all or any of its parts are exposed to dan^r. What is the real value of this provision 'of the constitu- tion if the legislature, inhibited from in- 18 ourring a debt beyond fifty thousand dollars on behalf of tlie State, may force a debt tenfold or one hundred-fold greater — for there is no limit to the power — upon all the cities of the State ? We can perceive none." We do not see how ting can be reconciled with the earlier Illinois cases, and it is'so manifestly right, it iS' hoped the learned court will never make> the attempt. ' The following extract from the opin- ion in Bay City v. State Treasurer, 23 Mich. 499, 504, is upon this point: " Our State had once before had a bitter ex- perience of' the evils of the government connecting itself with works of internal improvement. In a time of inflation and imagined prosperity, the State had con- tracted a targe debt for the construction of a system of railroads, and the people were oppressed with heavy taxation in consequence. Moreover, for a portion of this debt they had not received what they bargained for, and they did not recognize their legal or moral obligation to pay for it. The good name and feme of the State sttfi^ered in consequence. The result of it all was that a settled conviction fastened itself upon the minds of our people, that works of internal improvement should be private enterprises ; that it was not with- 274 CONSTITUTIONAL LIMITATIONS. [CH. VIII. Another class of legislation, which has recently demanded the attention of the courts, has been little less troublesome, from the in the proper province of government to connect itself with their construction or management, and that an imperative State policy demanded that no more bur- dens should be imposed upon the people by State authority, for any such purpose. Under this conviction they incorporated in the constitution of 1850, under the significant title of ' Finance and Taxa- tion,' several provisions expressly pro- hibiting the State from being a party to, or interested in, any work of internal im- provement, or engaged in carrying on any such work, except in the' expenditure of grants made to it ; and also from sub- scribing to, or being interested in, the stock of any company, association, or cor- poration, or loaning its credit in aid of any person, association, or corporation. Art. XIV. §§ 9, 8, and 7. " All these provisions were incorpo- rated by the people in the constitution, as precautions against vijudicious action by themselves, if in another time of inflation and excitement they should be tempted to incur the like burdensome taxation in order to accomplish public improvements in cases where they were not content to wait the result of private enterprise. The people meant to erect such effectual bar- riers that if the temptation should return, the means of inflicting the like injury upon the credit, reputation, and pros- perity of the State should not be within the reach of the authorities. They be- lieved these clauses of the constitution accomplished this purpose perfectly, and none of its provisions had more influence in recommending that instrument to the hearty good-will of the people. " In process of time, however, a ma- iority in the legislature were found willing, against the solemn warning of the execu- tive, to resort again to the power of taxa- tion in aid of internal improvement. It was discovered that though ' the State ' was expressly inhibited from giving snch aid in any form, except in the disposition of grants made to it, the subdivisions of which the State was composed were not under the like ban. Decisions in other States were found which were supposed to sanction the doctrine that, under such circumstances, the State might do indi- rectly through its subdivisions what di- rectly it was forbidden to do. Thus a way was opened by which the whole purpose of the constitutional provisions quoted might be defeated. The State could not aid a private corporation with its credit, but it might require each of its townships, cities, and villages to do so. Tlie State could not load down its people with taxes for the construction of a pub- lic improvement, but it might compel the municipal authorities, which were its mere creatures, and which held their whole authority and their whole life at its will, to enforce such taxes, one by one, until the whole people were bent to the burden. '■ Now, whatever might be the just and proper construction of similar provisions in the constitutions of States whose his- tory has not been the same with our own, the majority of this court thought when the previous case was before us, and they still think, that these provisions in our constitution do preclude the State from loaning the public credit to private cor- porations, and from imposing taxation npon its citizens or any portion thereof in aid of the construction of railroads, So the people supposed when the constitu- tion was adopted. Constitutions do not change with the varying tides of public opinion and desire ; the will of the people therein recorded is the same inflexible law until changed by their own delibera- tive action ;,and it cannot be permissible to the courts that, in order to aid eva- sions and circumventions, they shall sub- ject these instruments, which in the main only undertake to lay down broad general principles, to a literal and tech- nical construction, as if they were great public enemies standing in the way of progress, and the duty of every good citizen was to get around their provisions whenever practicable, and give them a damaging thrust whenever convenient. They mnst construe them as the people did in their adoption, if the means of ar- riving at that construction are within their power. In these cases we thought we could arrive at it from the public his- tory of the times." The State cannot provide indirectly CH. VIII.] THE OEADES OF MUNICIPAL GOVERNMENT. 275 new, varied, and peculiar questions involved, than that in relation to municipal subscriptions in aid of internal improvements. As the power to declare war and to conduct warlike operations rests in the national government, and that government is vested with unlimited control of all the resources of the country for those purposes, the duty of national defence, and, consequently, the duty to defend all the citizens as well as all the property of all the municipal organizations in the several States, rests upon the national authorities. This much is conceded, though in a quali- fied degree, also, and, subordinate to the national government, a like duty rests doubtless upon the State governments, which may employ the means and services of tlieir citizens for the purpose. But it is no part of the duty of a township, city, or county, as such, to raise men or money for warlike operations, nor have they any authority, without express legislative sanction, to impose upon their people any harden by way of taxation for any such purpose.^ Nevertheless, when a war arises which taxes all the energies of the nation, which makes it necessary to put into the field a large proportion of all the able-bodied men of the country, and which renders imperative a resort to all available means for filling the ranks of the army, recruiting the navy, and replenish- ing the national treasury, the question becomes a momentous one, whether the local organizations — those which are managed most immediately by the people themselves — may not be made im- portant auxiliaries to the national and State governments in accomplishing the great object in which all alike are interested so vitally ; and if they are capable of rendering' important assis- tance, whether there is any constitutional principle which would be violated by making use of these organizations in a case where failure on the part of the central authority would precipitate general dismay and ruin. Indeed, as the general government, with a view to convenience, economy, and promptness of action, will be very likely to adopt; for any purposes of conscription, the existing municipal divisions of the States, and its demand for men to recruit its armies will assume a form seeming to impose on the people whose municipal organization embraces the territory covered by the demand, the duty of meeting it, the question we for payment for work of internal improve- winton, 32 Conn. 131. See also Claflin ment by authorizing a townsliip to raise v. Hopkinton, 4 Gray, 502 ; Coyer v. Bay- money for it by taxation. Anderson v. town, 12 Minn. 124; Fiske v. Hazzard 7 Hill, 54 Mich. 477. R. I- 438 ; Alley v. Edgecomb, 63 Me. 1 Stetson V. Kempton, 13 Mass. 272; 446; People v. Supervisors of Columbia, Gove V Epping, 41 N. H. 539 ; Crowell v. 43 N. Y. 130; Walschlager v. Liberty, 28 Hopkinton, 45'"N. H. 9 ; Baldwin v. North Wis. 362 ; Burrill v. Boston, 2 Chft. 590. Branford, 32 Conn. 47; Webster v. Har- 276 CONSTITUTIONAL LIMITATIONS. [CH. YIII. h,ave stated may appear to be one rather of form than of sub- stance, inasmuch as it would be difficult to assign reasons why a duty resting upon the citizens of a municipality may not be con- sidered as resting upon the corporation itself of which they are the constituents, and if so, why it may not be assumed by the miunicipality itself, and then be discharged in like manner as any other municipal burden, if: the legislature shall grant permission for that purpose. One difficulty that suggests itself in adopting any such doctrine is, that, by the existing law of the land, able-bodied men between certain specified ages are alone liable to be summoned to the performance of military duty ; and if the obligation is assumed by the municipal organizations of the State, and discharged by the payment of money or the procurement of substitutes, the taxation required for this purpose can be claimed, with some show of reason, to be taxation of the whole community for the particular benefit of that class upon whom by the statutes the obligation rests. When the public funds are used for the purpose, it will be insisted that they are appropriated to discharge the liabilities of private individuals. Those who are already past, the legal age of service, and who have stood their chance of being called into the field, or perhaps have actually rendered the re- quired service, will be able to urge with considerable force that the State can no longer honorably and justly require them to contribute to the public defence, but ought to insist that those within the legal ages should perform their legal duty ; and if any upon whom that 'duty rests shall actually have enrolled them- selves in the army with a view to discharge it, such persons may claim, with even greater reason, that every consideration of equality and justice demands that the property they leave behind them shall not be taxed to relieve others, from a duty equally imperative. Much may be sajd on both sides of this subject, but the judicial decisions are clear, that the people of any municipal corporation or political division of a State have such a general interest in relieving that portion of their fellow-citizens who are liable to the performance of military duty, as will support taxation or render valid indebtedness contracted for the purpose of supplying their places, or of filling any call of the national authorities for men, with volunteers who shall be willing to enter the ranks for such pecuniary inducements as may be offiered them. The duty of national defence, it is held, rests upon every person under the protection of the government who is able to contribute to it, and not solely upon those who are within the legal ages. The statute CH. VIII.] THE GRADES OF MUNICIPAL GOVEENMENT. 277 which has prescribed those ages has for its basis the presumption that those between the limits fixed are best able to discharge the burden of military service to the public benefit, but others are not absolved from being summoned to the duty, if at any time the public exigency should seem to demand it. Exemption from military duty is a privilege rather than a right, and, like other statutory privileges, may be recalled at any time when reasons of public policy or necessity seem to demand the recall.^ Moreover, there is no valid reason, in the nature of things, why those who are incapable of performing military service, by reason of age, phy&ical infirmity, or other cause, should not contribute, in pro- portion to their ability, to the public defence by such means as are within their power ; and it may well happen that taxation, for the purpose of recruiting the armies of the nation, will dis" tribute the burden more equally and justly among all the citizens than any other mode which could be devised^ Whether it will be just and proper to allow it in any instance must rest with the legislature to determine ; but it is unquestionably competent^ with legislative permission, for towns, cities, and Counties to raise money by loans or by taxation to pay bounty moneys to those who shall volunteer to fill any call made upon such towns, cities, or counties to supply men for the national armies.^ * See post, p. 471, and cases cited in note, voice of him alone who owes the service, 2 " Tl)e power to create a public debt, but swells into a chorus from his whole and liquidate it by taxation, is too clear family, relatives, and frieinds. Military fur dispute. The question is, therefore, service is the highest duty and burden the narrowed to a single point : Is the pur- citizen is called to obey or to bear. It in- pose in this instance a public one ? Does volves life, limb, and health, and is there- it concern the common welfare and in- fore a greater ' burden ' than the taxation terest of the municipality ? Let us of property. The loss or the injury is not see. Civil war was raging, and Con- confined to the individual himself, but gresB provided In the second section of extends to all the relations he sustains, the act of 24th February, 1864, that the It embraces those bound to him in the quota of troops of each ward of a city, ties of consanguinity, friendship, and in- town, towtiship, precinct, &c., should be^ terest; to the community which must as nearly as possible in proportion to the furnish support to his family, if he can- number of men resident therein liable to Hot, and which loses in him a member render military service. Section three whose labor, industry, and property con- provided that all volunteers who may tribute to its wealth and its resources ; enlist after a draft shall be ordered, shall who assists to bear its burdens, and be deducted from the number ordered to whose knowledg:e, skill, and public spirit be drafted in such ward, town, &c. Vol- , contribute to the general good. Clearly unteers are therefore by law to be ao- the loss of that part of the population cepted in relief of the municipality from upon whom the greatest number depend, a compulsory service to be determined and who contribute most to the public by lot or chance. Does this relief involve welfare by their industry, skill, and prop- the public welfare or interest? The efty, and good conduct, is a common answer rises spontaneously in the breast loss, aiid therefore a general itijury. of every one in a Community liable to the These are alike subject to the draft. The military burden. It is given, not by the blind and relentless lot respects no age, 278 CONSTITUTIONAL LIMITATIONS. [CH. VIIL Relief of the community from an impending or possible draft is not, however, the sole consideration which will support taxation by the municipal corporations of the State to raise money for the purpose of paying bounties to soldiers. Gratitude to those who have entered the military service, whether as volunteers or drafted men, or as substitutes for others who were drafted or were liable to be, is a consideration which the State may well recognize, and it may compensate the service either by the payment of bounty moneys directly to such persons, or by provision for the support of those dependent upon them while they shall be absent from their homes. Whether we regard such persons as public bene- factors, who, having taken upon themselves the most severe and dangerous duty a citizen is ever called upon to perform, have thereby entitled themselves to public reward as an incentive to fidelity and courage, or as persons who, having engaged in the public service for a compensation inadequate to the toil, privation, and danger incurred, are deserving of the bounty as a further recognition on the part of the community of the worth of their services, there seems in either case to be no sufi&cient reason to question the right of the legislature to authorize the municipal divisions of the State to raise moneys in any of the usual modes, for the purpose of paying bounties to them or their families, in recognition of such service^.^ And if a municipal corporation shall condition, or rank in life. It is, there- Allen, 80 ; Lowell v. Oliver, 8 Allen, 247 ; fore, clearly the interest of the com- Washington County v. Berwick, 66 Fa. munity that those should serve who are St. 466; Trustees of Cass a. Dillon, 16 willing, whose loss will sever the fewest Ohio St. 88; State v. Wilkesville, 20 Ohio ties and produce the least injury. St. 288. Also Opinions of Justices, 62 " The bounty is not a private trans- Me. 606, in which the view is expressed action in which the individual alone is that towns cannot, under the power benefited. It benefits the public by in- to raise money for " necessary town ducing and enabling those to go who feel charges," raise and pay commutation they can best be spared. It is not volun- moneys to relieve persons drafted into tary in those who pay it. The community the military service of the United States, is subject to the draft, and it is paid to re- ^ The act under which the Pennsyl- lieve it from a burden of war. It is not vania case, cited in the preceding note, a mere gift or reward,,but a consideration was decided, authorized the borough to for services. It is therefore not a con- contract a debt for the payment of three flscation of one man's property for hundred dollars to each non-commissioned another's use, but it is a contribution officer and private who might thereafter from the public treasury for a general volunteer and enter the service of the good. In short, it is simply taxation to United States, and be credited upon the relieve the municipality from the stem quota of the borough under an impending demands of war, and avert a public in- draft. The whole purpose, therefore, jury in the loss of those who contribute was to relieve the community from the most to the public welfare." Speer v. threatened conscription. But in the case School Directors of Blairsville, 50 Pa. St. of Brodhead v. Milwaukee, 19 Wis. 624, 150, 189. See also Waldo v. Portland, 662, it was held constitutional, not only to 33 Conn. 363 ; Bartholomew v. Harwin- provide for the future by such municipal ton, 33 Conn. 408 ; Fowler v. Danvers, 8 taxation, but also to raise moneys to pay CH. Vm.] THE GRADES OF MUNICIPAL GOVERNMENT. 279 have voted moneys for such purpose without legislativie authority, it is competent for the legislature afterwards to legalize their action if it shall so choose.^ The cases to which we have referred in the notes assume that, if the purpose is one for which the State might properly levy a tax upon its citizens at large, the legislature would also have power to apportion and impose the duty, or confer the power of assuming it, upon the towns and other municipal or political divisions. And the rule laid down is one which opens a broad field to legislative discretion, allowing as it does the raising and appropriation of moneys, whenever, in the somewhat extravagant words of one of the cases, there is " the least possibility that it will be promotive in any degree of the public welfare." ^ The same rule, substan- tially, has been recognized by the Court of Appeals of New York* " The legislature is not confined in its appropriation of the public moneys, or of the sums to be raised by taxation in favor of indi- viduals, to cases in which a legal demand exists against the State. It can thus recognize claims founded in equity and justice in the largest sense of these terms, or in gratitude or charity. Inde- pendently of express constitutional restrictions, it can make appropriations of mOney whenever the public well-being requires or will be promoted by it, and it is the judge of what is for the public good. It can, moreover, under the power to levy taxes, apportion the public burdens among all the taxpaying citizensof the State, or among those of a particular section or political divi- sion." 8 And where citizens have voluntarily advanced moneys for the purpose of paying bounties to recruits who fill the quota bounties to volunteers previously enlisted, habitants from the burden of a draft and even to those who should thereafter under a law of Congress, was held void procure substitutes for themselves, and as tending to defeat tlie purpose of sunh have them credited on the municipal quota, law. The decision was made by a bare 1 Booth V. Town of Woodbury, 32, majority of a bench of eleven judges. Conn. 118; Bartholomew v. Harwinton, Compare O'Hara d. Carpenter, 23 Mich. 33 Conn. 408 ; Crowell v. Hopkinton, 46 410, in which a contract of insurance N. H. 9 ; Shackford v. Newington, 46 N. H. against a military draft was held void on 415 ; Lowell v. Oliver, 8 Allen, 247 ; grounds of public policy. Ahl V. Gleim, 52 Pa. St. 432 ; Weister ^ Booth ». Woodbury, 32 Conn. 118, V. Hade, 52 Pa. St. 474 ; Coffman v. 128, per Butler, J. " To make a tax law Keightley, 24 Ind. 509 ; Board of Com- unconstitutional on this ground, it must missioners u. Bearss, 25 Ind. 110 ; Co- be apparent at first blush that the com- mer v. Fulsom, 13 Minn. 219 ; State v. munity taxed can have no possible inter- Demorest, 32 N; J. 528; Taylor v. Thomp- est in the purpose to which their money son, 42 111. 9; Barbour w. Camden, 51 Me. is to be applied.". Sharpless w. Mayor, 608 ; Hart ». Holden, 55 Me. 572 ; Burn- &C., 21 Pa. St. 147, 174, following Cheaney ham V. Chelsea, 43 Vt. 69; Butler v. ». Hooser, 9 B. Monr. .330. Pultney, 43 Vt. 481. In State v. Jackson, ' Guilford v. Supervisors of Chenango, 33 N. J. 450, a statute authorizing a town 13 N. T. 148, 149. See New Orleans v. to raise money by tax to relieve its in- Clark, 95 TJ. S. 644. 280 CONSTITUTIONAL LIMITATIONS. [CH. VIIL of a municipal corporation, on an landerstanding, based upon informal oorpox'ate action, that the moneys should be refunded when a law should be passed permitting it, a subsequent act of the legislature authorizing taxation for this purpose is valid*^ However broad are the terms employed in describing the legis- lative power over taxation in these cases, it is believed that no one of them has gone so far as to sanction taxation or the appro- priation of the public revenue in order to refund to individuals moneys which they may have paid to relieve themselves from an impending draft, or may have voluntarily contributed to any public purpose, from motives purely personal to themselves, with- out any reason to rely upon the credit of the State, or of any municipal corporation,, for reimbursement, and where the circum- stances are not such as fairly to challenge the public gratitude. Taxation in such a case, where no obligation, honorary or other- wise, rests upon the public, would be nothing else than a naked case of appropriating the property of the taxpayer for private purposes, and that, too, without reference to anticipated public benefits.^ 1 Weister v. Hade, 52 Pa. St. 474. And see People v. Sullivan, 43 III. 412 ; Jolmson V. Camp'bell, 49 111. 316. Com- pare Susquehanna Depot v. Barry, 61 Pa. St. 317. * Tyson v. School Directors, &o., 51 Pa. St. 9. A meeting of persons liable to draft under the law of the United States was called, and an association formed, called the Hali&x Bounty Association, which levied an assessment of thirty dol- lars on each person liable to mihtary duty in the township, and solicited contribu- tions from others. Afterwards, an act was passed by the legislature, with a pre- amble reciting that certain citizens of Halifax township, associated as the Hali- fax Bounty Association, for freeing the said township from the late drafts, ad- vanced moneys, which were expended in paying bounties to volunteers to All the quota of the township. The act then au- thorized and required the school directors to borrow such sums of money as would fully reimburse the said Halifax Bounty Association for moneys advanced to free said township from the draft, and then further authorized the school directors to levy and collect a tax to repay the sums borrowed. The court say : " We are bound to regard the statute as an author- ity to reimburse what was intended by the Association as advances made to the township with the intent or understand- ing to be reimbursed or returned to those contributing. This was the light in which the learned judge below regarded* the terms used ; and unless this appears in support of the present levy ty the school directors, they are acting without author- ity. But the learned judge, if I pfoperly comprehend his meaning, did not give sufficient importance to these terms, and hence, I appreliend, he fell into error. He does not seem to have considered it material whether the Association paid ite money voluntarily in aid of its own mem- bers, or expressly to aid the township in saving its people from a draft, with the understanding that it was advanced in the character of a loan if the legislature chosd to direct its repayment, and the school directors chcse to act upon the author- ity conferred. This we cannot agree to. Such an enactment would not be legisla- tion at all. It would be in the nature of judicial action, it is true ; but, wanting the justice of notice to parties to be af> fected by the hearing, trial, and all that gives sanction and force to regular judi- cial proceedings, it would much more re- semble an imperial rinraript than consti- tutional legislation : £rst, in devlaring an obligation where none was created or CH. Vin.] THE GRADES OF MUNICIPAL GOVEKNMENT, 281 But it has been held by the Supreme Court of Massachusetts that towns might be authorized by the legislature to raise moneys by taxation for the purpose of refunding sums contributed by individuals to a common fund, in order to fill the quota of such towns under a call of the President, notwithstanding such moneys might have been contributed without promise or expectation of reimbursement. The court were of opinion that such contribu- tions might well be considered as advancements to a public object, and, being such, the legislature might properly recognize the obligation and permit the towns to provide for its discharge.^ On a preceding page we have spoken in strong terms of the complete control which is possessed by the legislative authority of the State over the municipal corporations. There are never- theless some limits to its power in this regard, as there are in various other directions limits to the legislative power of the State. Some of these are expressly defined ; others spring from the usages, customs, and maxims of our people ; they are a part of its history, a part of the system of local self-government, in view of the continuance and perpetuity of which all our constitutions are framed, and of the right to which the people can never be deprived except through express renunciation on their part. One undoubted right of the people is to choose, directly or indirectly, under the forms and restrictions prescribed by the legislature for reasons of general State policy, the officers of lopal administration, and the board that is to make the local laws. This is a right which of previously existed ; and next, in decree- Allen, -670, it was held tfasit the legisla- ing payment by directing the money or ture cuuld not empower towns to raise property of the people to be sequestered money by taxation for the purpose of re- to make the payment. The legislature funding what had been paid by individ- can exercise no such despotic functions ; uals for substitutes in military service, and as it is not apparent in the act that In Mead v. Acton, 139 Mass. 341, it was they attempted to do so, we are not held that an act passed in 1882 was void, to presume they did. They evidently, which permitted taxation to pay bounties intended the advancements to be reim- to those who re-enlisted in 1864, as being bursed to be only such as were made on for a private purpose. In Cass v. Dillon, the faith that they were to be returned." 16 Ohio St. 38, it was held that taxes to See also Crowell v. Hopkinton, 46 N. H. refund bounties previously and volun- 9; Miller v. Grandy, 13 Mich. 640; Pease tarily paid might be authorized. See also v. Chicago, 21 111. 600; Ferguson v. Land- State v. Harris, 17 Ohio St. 608. The ram, 6 Bush, 230; Esty v. Westminster, Supreme Court of Wisconsin, in thewell- 97 Mass. 324 ; Cole v. Bedford, 97 Mass. reasoned case of State :;. Tappan, 29 Wis. 826 ; Usher v. Colchester, 33 Conn. 667 ; 664, deny the power of the State to coni- Ferkins v. Milford, 69 Me. 316; Thomp- pet a municipal corporation to pay boun- son V. Pittston, 69 Me. 316 ; Kelly v. Mar- ties wliere it has not voted to do so. shall, 69 Pa. St. 319. The legislature i Freeland v. Hastings, 10 Allen, 570, cannot ratify the action of a town in 686. And see Hilbish v. Catherman, 64 agreeing to repay those who paid money Fa. St 154, and compare Tyson v. School to avoid the draft. Bowles v. LandafC, 69 Directors, 61 Fa. St. 9. N. H. 164. In Freeland v. Hastings, 10 282 CONSTITUTIONAL LIMITATIONS. [CH. vin. late has sometimes been encroached upon under yarious plausible pretences, but almost always with the result which reasonable men should have anticipated from the experiment of a body at a distance attempting to govern a local community of whose affairs or needs they could know but little, except as they should derive information from sources likely to have interested reasons for misleading.^ Another is the right of the local community to determine what pecuniary burdens it shall take upon its shoulders. But here from the very nature of the case there must be some limitations. The municipalities do not exist wholly for the ben- efit of their corporators, but as a part of the machinery of State government, and they cannot be permitted to decline a perform- ance of their duties or a discharge of their obligations as such. They cannot abolish local government; they cannot refuse to provide the conveniences for its administration ; they cannot decline to raise the necessary taxes for the purpose ; they cannot repudiate pecuniary obligations that justly rest upon them as a local government. Over these matters the legislature of the State must have control, or confusion would inevitably be introduced 1 On this subject reference is made to what is said by Campbell, Ch. J., in Peo- ple V. Hurlbut, 24 Mich. 44, 87 et seq. ; also p. 97. See a. c. 9 Am. Rep. 103. Much has been said concerning the necessity of legislative interference in some cases wliere bad men were coming into power through universal suffrage in cities, but the recent experience of the country ^hows that this has ofiener been said to pave the way fur bad men to obtain office or grants of unusual powers from the le- gislature than with any purpose to effect local reforms. And the great municipal scandals and frauds that have prevailed, like those which were so notorious in New York City, have' been made possible and then nursed and fostered by illegiti- mate interference at the seat of State government. Some officers, usually of local appointment, are undoubtedly to be regarded as State officers whose choice may be confided to a State authority without any invasion of local rights ; such as militia officers, officers of police, and those who have charge of the execution of the criminal laws ; but those who are to administer the corporate funds and have the control of the corporate prop- erty, those who make the local laws and those who execute them, cannot right- fully be chosen by the central authority. Dillon, Mun. Corp. § 83. See People v. Com. Council of Detroit, 28 Mich. 228. The legislature cannot appoint a board to have charge of the public works, streets, and fire department of a city. State V. Denny, 21 N. E. Eep. 252, 274 (Ind.); Evansville v. State, id. 267 (Ind.). Kor may a city board control the police of neighboring townships which are not represented on it. Metr. Police Board v. Wayne County Auditors, 68 Mich. 576. But the State may provide for the appointment of police officials in a city. Com. v. Plaisted, 148 Mass. 374; State v. Seavey, 22 Neb. 454. See State v. Hunter, 38 Kan. 578. And it may empower a board of water com- missioners, created by itself, to bond a city. David v. Portland Water Com., 14 Oreg. 98. In Ohio it is held no infraction of the right of local self- government to allow the governor to ap- point a board of public affairs for cities. State V. Smith, 44 Ohio St. 348. In Com. V. Plaisted, supra, the court say, " We cannot declare an act of the legislature invalid because it abridges the exercise of the privilege of local self-government in a particular in regard to which such privilege is not guaranteed by any pro- vision of the Constitution." CH. VIII.J THE GEADES OF MUNICIPAL GOVERNMENT. 283 into the whole system. But beyond this it is not often legitimate for the State to go except in moulding and shaping the local powers, and perhaps permitting the local authorities to do certain things for the benefit of their citizens which under the general grants of power would be inadmissible.^ On this general subject we shall venture to lay down the follow- ing propositions as the result of the authorities : — 1. That the legislature has undoubted power to compel the municipal bodies to perform their functions as local governments under their charters, and to recognize, meet, and discharge the duties and obligations properly resting upon them as such, whether they be legal, or merely equitable or moral ; and for this purpose it may require them to exercise the power of taxation whenever and wherever it may be deemed necessary or expedient.^ 1 This subject is discussed witli some fulness in Cooley on Taxation, ch. xxi. ^ In support of tliis, we refer to the very strong case of Guilford v. Super- visors of Chenango, 18 Barb. 615, s. c. 13 N. Y. 143, where a town was compelled by the legislative authority of the State to reimburse its officers the expenses in- curred by them in the honest but mis- taken endeavor to discharge what they believed to be their duty ; approved in New Orleans v. Clark, 95 U. S. 644 ; also to Sinton v. Ashbury, 41 Cal. 525, 680, in which it is said by Crocket, J., that " It is established by an overwiielming weight of authority, and I believe is conceded on all sides, that the legislature has the constitutional power to direct and control the affairs and property of a municipal corporation _/?»• municipal purposes, provid- ed it does not impair the obligation of a contract, and by appropriate legislation may so control its affairs as ultimately to compel it, out of the funds in its treasury, or by taxation to be imposed for that pur- pose, to pay a demand when properly es- tablished, which in good conscience it ought to pay, even though there be no legal liability to pay it " (citing Blanding V. Burr, 13 Cal. 343 ; Beals v. Amador Co., 35 Cal. 624; People v. Supervisors of San Francisco, 11 Cal. 206 ; Sharp v. Contra Costa Co., 84 Cal. 284 ; People v. McCreery, 34 Cal. 482; People v. Ala- meda, 26 Cal. 641, and holding that a city might be compelled to pay the claim of persons who had acted as commissioners in the extension of certain of its streets); also to Borough of Dunmore's Appeal, 52 Pa. St. 374, in which the legislature as- sumed the right of apportioning the in- debtedness of a town among the boroughs carved out of it ; supported by Layton v. New Orleans, 12 La. Ann. 515; People V. Alameda, 26 Cal. 641 ; and Burns v. Clarion County, 62 Pa. St. 422 ; also to People V. Flagg, 46 N. Y. 401, in which the legislative power to direct the con- struction of a public road, and to compel the creation of a town debt for the pur- pose, was fully sustained; to People :;. Power, 25 III. 187 ; Waterville v. County Commissioners, 59 Me. 80 ; and to nume- rous other cases cited, ante, p. 229, note, and which we will not occupy space by repeating here. The legislature may* validate an unauthorized issue of bonds, thereby taking away an inequitable de- fence against a holder of them in good faith, and enabling him to enforce them. Kead v. Plattsraouth, 107 U. S. 568. So far as an act creates a liability which did not exist, it is void ; so far as it provides a means for enforcing a pre-existing lia- bility, it is valid. Supervisors of Sads- bury V. Dennis, 96 Pa. St. 400. The legislature cannot impose taxation to pay what a county does not owe : Board of Supervisors v. Cowan, 60 Miss. 876 ; nor to bestow a gratuity ; otherwise if there is an equitable obligation to pay. Fuller V. Morrison Co., 36 Minn. 809. See State K.Foley, 80 Minn. 350; Caldwell Co. v Harbert, 68 Tex. 821. In Creighton v. San Francisco, 42 Cal. 446, it is said that the power of the legislature to appropriate the money of municipal corporations in payment of equitable claims to individuals, 284 CONSTITUTIONAL LIMITATIONS. |[CH. VIIL 2. That in some cases, in view of the twofold character of such bodies, as being on the one hand agencies of State governmentj and on the other, corporations endowed with capacities and per* mitted to hold property and enjoy peculiar privileges for the ben- efit of their corporators exclusively, the legislature may permit the incurring of expense, the contracting of obligations, and the levy of taxes which are unusual, and which would not be admissible under the powers usually conferred. Instances of the kind may be mentioned in the offer of military bounties, and the payment of a disproportionate share of a State burden in consideration of peculiar local benefits which are to spring from it.^ 3. But it is believed the legislature has no power, against the will of a municipal corporation, to compel it to contract debts for local purposes in which the State has no concern, or to assume obligations not within the ordinary functions of municipal govern- ment. Such matters are to be disposed of in view of the interests of the corporators exclusively, and they have the same right to not enforceable in the courts, depends on the legislative conscience, and the judi- ciary will not interfere unless in excep- tional cases. Unquestionably the legis- lature may decide what taxes shall be levied for proper ptirposes of local gov- ernment. Youngblood v. Sexton, 82 Mich. 406. ' The subject of military bounties has been sufficiently referred to already. As to the right to permit a municipal corpo- ration to burden itself with a local tax for a State object, we refer to Merrick v. Am- herst, 12 Allen, 500 ; Marks v. Trustees of Pardue University ,37 Ind.155; Hasbrouck V. Milwaukee, 13 Wis. 37. The first was a case in which, in consideration of the local benefits expected from the location of the State agricultural college in a certain town, the town was permitted to levy a large local tax in addition to its propor- tion of the State burden, for the erection of the necessary buildings. The second case was of a similar nature. The third was the case of permission to levy a city tax to improve the city harbor, — a work usually done by the general government. There are cases which go further than these, and hold that the legislature may compel a municipal corporation to do what it may thus permit. Thus, in Kirby ». Shaw, 19 Pa. St. 258, it appeared that by an act of April 3, 1848, the commissioners of Bradford County were required to add $500 annually, until 1857, to the usual county rates and levies of the borough of Towandadn said county, for the purpose of defraying the expenses of the court- house and jail, then in process of erection in that borough. The act was held con- stitutional on the principle of assessment of benefits. In Gordon v. Comes, 47 N. T. 608, a law was sustained which " au- thorized and required" the village of Qrockport to levy a tax for the erection of a State normal school building at that place. It is to be said of this case, how- ever, that there was to be in the building a grammar-school free to all the children of proper acquirements in the village ; so that the village was to receive a peculiar and direct benefit from it, besides those which would be merely incidental to the location of the normal school in the place. But for this circumstance it would be distinctly in conflict with State v. Haben, 22 Wis. 660, where it was held incompe- tent for the legislature to appropriate the school moneys of a city to the purchase of a site for a State normal school : and also with other cases cited in the next note. It must be conceded, however, that there are other cases which sapport it. And see, as supporting the last case, Livingston County », Welder, 64 III. 427 ; Burr V, Carbondale, 76 111. 455; Liv- ingston County V. Darlington, 101 U. S. 407. CH. VIII.J THE GEADES OF MUNICIPAL GOVERNMENT. 285 determine them for themselves which the associates in private corporations have to determine for themselves the questions which arise for their corporate action. The State in such cases may remove restrictions and permit action, but it cannot compel it.^ ' 1 A city cannot be compelled tQ erect buildings for a county ; but it may be permitted to do it if it so elects. Cal- 1am V. Saginaw, 60 Mictv 7. Tliere are undoubtedly some cases which go to the extent of holding that municipal corporations and organizations are so completely under the legislative control, that whatever the legislature may permit them to do, it may comp/el them to do, whether the corporators are willing or not. A leading case is Thomas v. Leland, 24 Wend. 65. In that case it appeared that certain citizens of Utica had given their bond to the people of the State of New York, conditioned for the payment into the canal fund of the sum of $38,615, the estimated difference between the cost of connecting the Chenango Canal with the Erie at Utica, instead of at Whitesr borough, as the canal commissioners had contemplated ; and it was held within the constitutional powers of the legislature to require this sum to be assessed upon the taxable property of the city of Utica, supposed to be benefi.ted by the canal connection^ The court treat the case as "the ordinary one of local taxation to make or improve a public highway," and dismiss it with few words. If it could be considered as merely a case of the, appor- tionment between a number of munici- palities of the expense of a public high- way running through them, it would have the support of Waterville v. County Comr. Djissioners, 69 Me. 80 ; Commonwealth v. Newburyport, 103 Mass. 129; and also what is said in Bay City v. State Treas- urer, 23 Mich. 499, where it is admitted that over the matter of the construction of such a highway, as \rell as the appor- tionment of expense, the State authority must necessarily be complete. It has been considered in subsequent New York crises as a case of apportionment merely. See People V. Brooklyn, 4 N. Y.419; Howell V, Buffalo, 37 N. Y. 267. The cases of Kirby v. Shaw, 19 Pa. St. 258, and Gor- don V. Comes, 47 N. Y. 6Q8, referred to in the preceding note, it wiU be per- ceived, were also treated as cases merely of apportionment. How that can he called a case of apportionment, however, which singles out a particular town, and taxes ijt for benefits to be expected from a highr way running across the State, without do- ing tlie same by any otlier town in tha State, it is not easy tn perceive. In Com- missioners of Revenue ». The State, 45! Ala. 399, it appeared that the legislature bad created a local board consisting of the president of the county commissioners of revenue of Mobile County, the mayor of Mobile, the president of the B.ank of Mobile, the president of the Mobile Cham- ber of Commerce, and one citizen of Mq» bile, appointed by the governor, as a board for the improvement of the river, harbor, and bay of Mobile, and required the commissioners of revenue of Mobile County to issue to them for that purpose county bonds to the amount of 11,000,000, and to levy a tax to pay them. Here was an appointment by the State of local officers to make at the expense of the locality an improvement which it has been customary for the general government to take in charge as one of national concern ; but the Supreme Court of the State sus- tained the act, going farther, as we think, in doing so, than has been gone in any other case. In Hasbrouck v. Milwaukee, 13 Wis. 87, approved and defended in an able opinion in Mills b. Charleton, 29 Wis. 400, the power of the legislature to com- pel the city of Milwaukee to issue bonds or levy a tax for the improvement of its harbor was distinctly denied, though it was conceded that permission might be given, which the city could lawfully act upon. Compare also Knappv. Giant, 27 Wis. 147 ; State v. Tappan, 29 Wis. 664 ; a. 0. 9 Am. Bep. 622 ; Atkins v. Handolph, 31 Vt. 226. In People v. Batchellor, 53 N. Y. 128, the Court of Appeals, through an able and lucid' opinion by Grovar, J., denied the validity of a mandatory statute compelling a town to take stock in a rail- road corporation, and to issue its bonds in exchange theref ori The authority to per- mit the town to do this was not discussed,, but, taking that as admittediitis-declared 286 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 4. And there is much good reason fpr assenting also to what several respectable authorities have held, that where a demand is that municipal corporations, in the mak- ing or refusing to make arrangements of the nature of that attempted to be forced upon the town in question, were entitled to the same freedom of action precisely which individual citizens might claim. This opinion reviews the prior decisions in tlie same State, and finds nothing con- flicting with the views expressed. In People 0. Mayor, &c. of Cliicago, 51 111. 17, s. c. 2 Am. Rep. 278, it was denied, in an opinion of great force and ability, de- livered by Chief Justice Breese, that tlie State could empower a board of park commissioners of State appointment to contract a debt for the city of Chicago, for the purposes of a public park for that city, and without the consent of its citi- zens. The learned judge says (p. 31): " While it is conceded that municipal cor- porations, whicli exist only for public pur- poses, are subject at all times to the control of tlie legislature creating them, and have in their franchises no vested rights, and whose powers and privileges the creating power may alter, modify, or abolish at pleasure, as they are but parts of the machinery employed to carry on the affairs of the State, over which and their rights and effects the State may exercise a general superintendence and control (Biuhland County a. Lawrence County, 12 111. 8 ; Trustees of Schools v. Tatman, 13 III. 30), we are not of the opinion that tliat power, such as it is, can be so used as to compel any one of our many cities to issue its bonds against its will, to erect a park, or for any other im- provement to force it to create a debt of millions ; in effect, to compel every prop- erty owner in the city to give his bond to pay a debt thus forced upon the city. It will hardly be contended that the legisla- ture can compel a holder of property in Chicago to execute his individual bond as security for the payment of a debt so or- dered to be contracted. A city is made up of individuals owning the property within its limits, the lots and blocks which com- pose it, and the structures which adorn them. What would be the universal judg- ment, should the legislature, sua sponte, project magnificent and costly structures within one of our cities, — triumphal arches, splendid columns, and perpetual fountains, — and require in the act creat- ing them that every owner of property within the city limits should give his in- dividual obligation for his proportion of the cost, and impose such costs as -a lien upon his property forever ? What v^ould be the public judgment of such an act, and wherein would it .differ from the act under consideration t " And again : " Here, then, is a case where taxes may be assessed, not by any corporate author- ity of the city, but by commissioners, to whom is intrusted the erection, embellish- ment, and control of this park, and this without consent of the property owners. " We do not think it is within the consti- tutional competency of the legislature to delegate this power to these commission- ers. If the principle be admitted that the legislature can, uninvited, of their mere will, impose such a burden as this upon the city of Chicago, then one much heav- ier and more onerous can be imposed ; in short, no limit can be assigned to legislative power in this regard. If this power is possessed, then it must be con- ceded that the property of every citizen within it is held at the pleasure and will of the legislature. Can it be that tlie General Assembly of the State, just and honest as its members may be, is the de- pository of the Tights of property of the citizen ? Would there be any sufficient security for property if such a power was conceded ? No well-regulated mind can entertain the idea that it is within the constitutional competency of the legislature to subject the earnings of any portion of our people to the hazards of any such legislation." This case should be read in connec- tion with the following in the same State, and all in the same direction. People v. Common Council of Chicago, 51 III. 58; Lovingston v. Wider, 53 III. 302 ; Peo- ple V. Canty, 55 III. 33 ; Wider ». East St. Louis, 55 III. 133 ; Gage v. Graham, 57 111. 144 ; East St. Louis v. Witts, 59 111. 155; Marshall v. Silliman, 61 III. 218; Cairo, &e. R. R. Co. v. Sparta, 77 III. 505 ; Barnes v. Lacon, 84 111. 461. See also People V. Common Council of Detroit, 28 Mich. 228. That the legislature may com- CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 287 asserted against a municipality, though of a nature that the legisla- ture would have a right to require it to incur and discharge, yet if Its legal and equitable obligation is disputed, the corporation has the right to have the dispute settled by the courts, and cannot be bound by a legislative allowance of the claim.i pel a municipality to levy a tax for a local road, see W^ileox v. Deer Lodge Co., 2 Mont. 574. Tift case of People v. Batchellor, 53 N. Y. 128, seems to us clearly inconsist- ent with Thomas v. Leland, suprd. But, on the other hand, the case of Duanes- burgh V. Jenkins, 67 N. Y. 177, goes to the p. 455, "related not to the right or power of the legislature to compel an individual or corporation to pay a debt or claim, but to the power of the legislature to i-aise money by tax, and apply such money, when so raised, to the payment thereof. We could not, under the decisions of the courts on this point, made in these and fuU extent ot holding that a subscription other cases, now hold that the legislature of a town to a railroad, made on condition had not authority to impose a tax to pay of subsequent assent of the town thereto, any claim, or to pay it out of the State may be relieved of the condition by the treasury; and for this purpose to impose legislature and enforced against the town, a tax upon the property of the whole though the original subscription was by a commission which the town did not choose. It is a little difficult, therefore, to determine what the law of New York now is on this subject, especially as in New York, &c. R. R. Co. v. Van Horn, 57 N. Y. 473, the power of the legislature to make valid an ineffectual individual con- tract is denied. But leaving out of view the New York cases, and a few others which were decided on the ground of an apportionment of local benefits, we think the case in Alabama will stand substan- tially alone. Before that decision the Su- preme Court of Illinois were able to say, in a case calling for a careful and thor- ough examination of the authorities, that counsel had " failed to find a case wherein it has been held that the legislature can compel a city against its will to incur a State, or any portion of the State. This was fully settled in People v. Mayor, &o. of Brooklyn, 4 N. Y. 419 ; but neither that case nor the case in 13 N. Y. 143, in any manner gave a warrant for the opinion that the legislature had a right to direct a municipal corporation to pay a claim for damages for breach of a contract out of the funds or property of such corpora- tion, without a submission of such claim to a judicial tribunal." If by this is meant that the legislative has power to compel a corporation to' tax its citizens for the payment of a demand, but has not the authority to make it a charge against the corporation in any other mode, the distinction seems to be one of form rather than of substance. It is no protection to the rights or property of a municipal cor- poration to hold that the legislature can- debt by the issue of its bonds for a local not determine upon a claim against it, if People r. Mayor, &c., See also cases pp. 601, improvement. 61 111. 17, 31 602, infrcu 1 It was held in People v. Hawes, 37 Barb. 440, that the legislature had no right to direct a municipal corporation to satisfy a claim made against it for dam- ages for breach of contract, out of the funds or property of such corporation. In citing the cases of Guilford v. Super- visors of Chenango, 13 N. Y. 143, and People V. Supervisors of New York, 11 Abb. 114, a distinction is drawn by which the cases are supposed to be reconciled with the one then under decision. " Those cases and many others," say the court. at the same time the corporation may be compelled by statute to assume and dis- charge the obligation through the levy of a tax for its satisfaction. But if it is only meant to declare that the legislature cannot adjudicate upon disputed claims, there can be no good reason to find fault with the decision. It is one thing to de. termine that the nature of a claim is such as to make it proper to satisfy it by taxa^ tion, and another to adjudge how much is justly due upon it. The one is the exer- cise of legislative power, the other of judicial. See Sanborn v. Rice, 9 Minn. 273; Commonwealth v. Pittsburgh, 34 Pa. St. 496; Plimpton v. Somerset, 38 288 CONSTITUTIONAL LIMITATIONS. [CH. VIII. Having cancisely stated these general views,, we add merely, that those cases which hold that the State may raise bounty moneys by taxation, to be paid to persons in the military service, we think stand by themselves, and are supported by different principles from any which can fairly be summoned tq the aid of some of the other cases which we have cited. The burden of the public defence unquestionably rests upon the whole community ; and the legislature may properly provide for its apportionment and discharge in such manner as its wisdom, may prescribe. But those cases which hold\ it competent for the legislature to give its consent to a municipal corporation engaging in works of public improvement outside its territorial limits, and becoming a stockholder in a private corporation, must be conceded on all hands to have gone to the very limit of constitutional power in this direction ; and to hold that the legislature may go even fur- ther, and, under its power to control the taxation of the political divisions and organizations of the State, may compel them, with- out the consent of their citizens, to raise money for such or any other unusual purposes,, or to contract debts therefor, seems to us to be introducing new principles into our system of local self-gov- ernment, and to be sanctioning a centralization of power not within the contemplation of the makers of the American consti- tutions. We think, where any such forced taxation is resisted by the municipal organization, it will be very difficult to defend it as a proper exercise of legislative authority in a, government where power is distributed on the principles which prevail here. Legislative Control of Corporate Property. The legislative, power of the State controls and disposes of the property of the State. How far it may also control and dispose Vt. 283; Gage o. Graham, 57 III. 144. sylvania court decided that the constitu- But the power to decide upon the breach tional guaranty of the right to jury trial of a contract by a corporation, and the had no application to municipal corpora- extent of the damages which have re- tions, and a commission might be created suited, is less objectionable and less likely by the legislature to adjust the demands to lead to oppression, than the power to be'tween them. See also In re Pennsyl- impuse through taxation a claim upon a vania Hall, 5 Pa. St. 204 ; Layton u. corporation which it never was concerned New Orleans, 12 La. Aq,n. 515. In Peo- in creating, against which it protests, and pie v. Power, 26 111. 187, it was held com- which is unconnected with the ordinary petentfor the legislature to apportion the functions and purposes of municipal gov- taxes collected in a county between a ernment. In Borough of Dunmore's Ap- city therein and the remainder of the peal, 62 Pa. St. 374, a decision was county, and that the county revenues made which seems tq conflict with that " must necessarily be within the control in People v. Hawes, mpra, and wjth the of the legislature for political purpases," subsequent case of Baldwin v. Mayor, &c. And see Pnrtwood e. Montgomery Co., of New York, 42 Barb. 549. The Penn- 52 Miss. 523. CH. Vm.] THE GRADES OF MUNICIPAL GOVERNMENT. 289 of the property of those agencies of government which it has created and endowed with corporate powers, is a question which happily there has been very little occasion to discuss in the courts. Being created as an agency of government, it is evident that the municipality cannot in itself have that complete and absolute control and power of disposition of its property which is possessed by natural persons and private corporations in respect to their several possessions. Por it can hold and own property only for corporate purposes, and its powers are liable at any time to be so modified by legislation as to render the property no longer available. Moreover, the charter rights may be altogether taken away ; and in that case the legislature has deprired the corporation of its property by depriving it of corporate capacity to hold it. And in many ways, while the corporation holds and enjoys property, the legislature must possess power to interfere with its control, at least incidentally ; for the mere fact that the corporation possesses property cannot deprive the State of its complete authority to mould and change the corporate organiza- tion, and enlarge or diminish the powers which it possessed be- fore. But whether the State can directly intervene and take away the corporate property, or convert it to other uses than those for which it was procured, or whether, on repealing a charter of incorporation, it can take to itself the corporate prop- erty, and dispose of it at its discretion, are different questions from any raised by the indirect and incidental interference referred to. In the leading case, in which it was decided by the Supreme Court of the United States that a private charter of incorporation, granted by a State, was a contract between the State and the corporators, not subject to modification or repeal, except in pur- suance of a right expressly reserved, but that the charter of a municipal corporation was not suQh a contract, it was at the same time declared, as the opinion of the judges, that the legislature could not deprive such municipal corporations of their vested rights in property. " It may be admitted," says one of the judges, " that corporations for mere public government, such as towns, cities, .and counties, may in many respects be subject to legislative control. But it will hardly be contended that even in respect to such corporations the legislative power is so transcen- dent that it may, at its will, take away the private property of the corporation, or change the uses of its private funds acquired under the public faith. Can the legislature confiscate to its own use the private funds which a municipal corporation holds under its charter, without any default or consent of the corporators ? If 19 290 CONSTITUTIONAL LIMITATIONS. [CH. VIIL a municipal corporation be capable of holding devises and legacies to charitable uses, as many municipal corporations are, does the legislature, under our forms of limited government, possess the authority to seize upon those funds and appropriate them to other uses, at its own arbitrary pleasure, against the will of the donors and donees? From the very nature of our government, the public faith is pledged the other way, and that pledge constitutes a valid compact ; and that compact is subject only to judicial inquiry, construction, and abrogation." ^ " The government has no power to revoke a grant, even of its own funds, when given to a private person or corporation for special uses. It cannot recall its own endowments, granted to any hospital or college, or city or town, for the use of such corporations. The only authority remaining to the government is judicial, to ascertain the validity of the grant, to enforce its proper uses, to suppress frauds, and', if the uses are charitable, to secure their regular administration through the means of equitable tribunals, in cases where there would otherwise be a failure of justice." ^ " In respect to public corporations," says another judge, " which exist only for public purposes, such as towns, cities, ;. Ith- aca, 16 N. Y. 158; Mills v. Brooklyn, 32 N. Y. 489 ; Barton v. Syracuse, 36 N. Y. 64 ; Lee w. Sandy Hill, 40 N. Y. 442 ; Clark V. Washington, 12 Wheat. 40; Riddle v. Proprietors of Locks, &c., 7 Mass. 169; Bigelow V. Inhabitants of Randolph, 14 Gray, 541 ; Mears i'. Commissioners of Wilmington, 9 Ired. 73; Browning v. Springfield, 17 111. 143; Bloomington v. Bay, 42 111. 503 ; Springfield v. LeClaire, 49 111. 476; Peru v. French, 55 111. 317 j Pittsburg V. Grier, 22 Pa. St. 54 ; Jones V. New Haven, 34 Conn. 1 ; Stackhouse v. Lafayette, 26 Ind. 17 : Brinkmeyer v. Evansville, 29 Ind. 187 ; Sawyer v. Corse, 17 Gratt. 230; Richmond v. Long, 17 Gratt. 375 ; Noble v. Richmond, 31 Gratt. 271 ; 8. c. 31 Am. Rep. 726; Blake v. St. Louis, 40 Mo. 569 ; Scott v. Mayor, &c. of Manchester, .37 Eng. L. & Eq. 495 ; Smoot V. Wetumpka, 24 Ala. 1 12 ; Albrittin v. Huntsville, 60 Ala. 486; s. o. 31 Am. Rep. 46 ; Detroit v. Corey, 9 Mich. 165 ; Rusch i>. Davenport, 6 Iowa, 443 ; Commission- ers V. Dackett, 20 Md. 468 ; Covington v. Bryant, 7 Bush, 248; Weightman v. Washington, 1 Black, 39 ; Chicago v. Rob- bins, 2 Black, 418 ; Nebraska w. Campbell, 2 Black, 590; Galveston v. Posnainsky, 62 Tex. 118 ; Hutchinson v. Olympia, 2 Wash. 314; Kellogg v. Janesville, 84 Minn. 132, and see Kent v. Worthing CH. Vin,] THE GRADES OF MUNICIPAL GOVERNMENT. 303 are looked upon as occupying the same position as private cor- porations, which, having accepted a valuable franchise, on condi- tion of the performance of certain public duties, are held by the acceptance to contract for the performance of those duties. In the case of public corporations, however, the liability is contingent on the law affording the means of performing the duty, which, in some cases, by reason of restrictions upon the power of taxation, they might not possess. But, assuming the corporation to be clothed with sufficient power by the charter to that end, the liability of a city or village, vested with control of its streets, for any neglect to keep them in repair, or for any improper construc- tion, has been determined in many cases.^ And a similar liability ' Local Board, L. R. 10 Q. B. D. 118. The same rule appliee to cities existing under a general law. Boulder t'. Niles, 9 Col. 416. A city is liable for a defect; in a sidewalk maintained by it though in fact outside the highway line : Mansfield v. Moore, 124 III. 133 ; for negligence of an abutter who for his own purposes ren- ders a sidewalk unsafe, if it has notice. Philadelphia v. Smith, 16 Atl. Eep. 493 (Pa.). See Dooley v. Sullivan, 112 Ind. 451. In the case of Detroit v. Blackeby, 21 Mich. 84, this whole subject is con- sidered at length; and the court (one judge dissenting) deny the soiuidness of the principle stated in the text, and hold that municipal corporations exist- ing under special charters are not liable to individuals for injuries caused by neg- lect to perform corporate duties, unless expressly made so by statute. This case is referred to and dissented from in Wal- tham V. Kemper, 55 111. 847, and ap- proved in Navasota v. Pearce, 46 Tex. 525 ; Young v. Charleston, 20 S. C. 116, and Arkadelphia v. Windham, 49 Ark. 139. The rule in California is similar. Chope V. Eureka, 78 Cal. 588. Where a street is roped oflF by order of a court, a city is not liable for an injury caused thereby. Belvin v. Richmond, 8 S. K. Eep. 378 ( Va). In Murtaugh v. St. Louis, 44 Mo. 479, 480, Currier, J., says : " The general result of the adjudications seems to be this : When the oflScer or servant of a municipal corporation is in the ex- ercise of a power conferred upon the corporation for its private benefit, and injury ensues from the negligence or misfeasance of such ofiicer or servant, the corporation is liable, as in the case of private corporations or parties; but when the acts or omissions complained of were done or omitted in the exercise of a corporate franchise conferred upon the corporation for the public good, and not for the private corporate advantage, then the corporation is not liable for the consequences of such acts or omissions." Citing Bailey v. New York, 3 Hill, 531 ;' Martin v. Brooklyn, 1 Hill, 550 ; Rich- mond V. Long's Adm'r, 17 Gratt. 375; Sherbourne v. Yuba Co., 21 Cal. 113; Dargan v. Mobile, 81 Ala. 469; Stewart V. New Orleans, 9 La. Ann. 461 ; Prother V. Lexington, 13 B. Monr. 559. And as to exemption from liability in exercising or failing to exercise legislative authority, see ante, pp. 264-256, and notes. As to who are to be regarded as municipal officers, see Maxmilian v. New York, 62 N. Y. 160; B. c. 20 Am. Eep. 468, and cases there cited. 1 Weet V. Brockport, 16 N. Y. 161, note; Hickok v. Plattsburg, 16 N. Y. 161 ; Nelson v. Canisteo, 100 N. Y. 89 ; Morey ». Newfane, 8 Barb. 645 ; Brown- ing ». Springfield, 17 111. 143 ; Hyatt v. Eondout, 44 Barb. 385 ; Lloyd v. Mayor, &e. of New York, 5 N. Y. 369 ; Eusch v. Davenport, 6 Iowa, 443. And see Dillon, Mun. Corp. c. 18, and the cases cited in the preceding note. The cases of Weet i». Brockport, and Hickok v. Plattsburg, were criticised by Mr. Justice Marvin, in the case of Peck v. Batavia, 32 Barb. 634, where, as well as in Cole v. Medina, 27 Barb. 218, he held that a village merely authorized to make and repair sidewalks, but not in terms absolutely and impera- tively required to do so, had a discretion conferred upon it in respect to such 304 CONSTITUTIONAL LIMITATIONS. [CH. VIIL would exist in other cases where the same reasons would be applicable. But if the ground of the action is the omission by the corpora- tion to repair a defect, it would seem that notice of the defect should be brought home to the corporation, or to officers charged with some duty respecting the streets, or that facts should appear sufficient to show that, by proper vigilance, it must have been lsnown.1 On the other hand, if the injury has happened in con- sequence of defective construction, notice is not essential, as th6 facts must be supposed to have been known from the first.^ In regard to all those powers which are conferred upon the •corporation, not for the benefit of the general public, but of the corporators, — such as the power to construct works to supply a city with water, or gas-works, or sewers, and the like, — the coi^ poration is held to a still more strict liability, and is made to respond in damages to the parties injured by the negligent man- ner in which the work is constructed, or guarded, even though, under its charter, the agents for the construction are not chosen or controlled by the corporation, and even where the work ia required by law to be let to the lowest responsible bidder. In Bailey v. Mayor, &c., of New York,^ an action was brought against the city by one who had been injured in his property by the careless construction of the Croton dam for the purpose of supplying the city with water. The work was constructed under the control of water commissioners, in whose appointment the city had no voice ; and upon this ground, among others, and also on the ground that the city officers were acting in a public capa- walks, and was not responsible for a is liable. Lincoln v. Boston, 148 Mass. refusal to enact ordinances or by-laws in 517. relation thereto ; nor, if it enacted such i Hart ». Brooklyn, 36 Barb. 226 ; ordinances or by-laws, was it liable for Dewey v. City of Detroit, 15 Mich. 307; damages arising from a neglect to enforce Garrison v. New York, 5 Bosw. 497 ; Mc- them. The doctrine that a power thus Ginity ». Mayor, &c. of New York, 6 conferred is discretionary does not seem Duer, 674 ; Decatur v. Fisher, 53 111. 407 ; consistent with the ruling in some of the Chicago v. McCarthy, 75 111. 602 ; Requa other cases cited, andis criticised in Hyatt v. Rochester, 45 N. Y. 129 ; Hume «. New V. Rondout, 44 Barb. 385. But see ante, York, 47 N. Y. 639 ; Springfield ». Doyle, pp. 254-256, and notes. Calling public 76 111. 202 ; Rosenburg v. Des Moines, 41 meetings for political or philanthropic pur- Iowa, 415; Yandersliste v. Philadelphia, poses is no part of the business of a muni- 103 Fa, St. 102; Dotton v. Albion, 60 cipal corporation, and it is not liable to Mich. 129 ; Davis v. Guilford, 65 Conn, one who, in lawfully passing by where 351. Notice of defect is notice of the the meeting is held, is inj,ured by the dis- facts, whether the authorities consider charge of a cannon fired by persons con- them as constituting a defect or not. earned in the meeting. Boyland n. Mayor, Hinckley v. Somerset, 146 Mass. 326. &c. of New York, 1 Sandf. 27. The noise '■* Alexander v. Mt. Steriing, 71 HI. of a cannon fired outside a highway is 366 ; Hinckley v. Somerset, 145 Mass. 826. not a defect in the way for which a city ^ 8 Hill, 581 ; b. c. in error, 2 Denio, 433. CH. VIII.] THE GKADES OF MUNICIPAL GOVERNMENT. 306 city, and, like other public agents, not responsible for the mis- conduct of those necessarily appointed by them, it was insisted the city could not be held liable. Nelson, Ch. J., examining the position that, " admitting the water commissioners to be the ap- pointed agents of the defendants, still the latter are not liable, inasmuch as they were acting solely for the State in prosecuting the work in question, and therefore are not responsible for the conduct of those necessarily employed by them for that purpose," says : " We admit, if the defendants are to be regarded as oc- cupying this relation, and are not chargeable with any want of diligence in the selection of agents, the conclusion contended for would seem to follow. They would then be entitled to all the immunities of public officers charged with a duty which, from its nature, could not be executed without availing themselves of the services of others ; and the doctrine of respondeat superior does not apply to such cases. If a public officer authorize the doing of an act not within the scope of his authority, or if he be guilty of negligence in the discharge of duties to be performed by him- self, he will be held responsible ; but not for the misconduct or malfeasance of such persons as he is obliged to employ. But this view cannot be maintained on the facts before us. The powers conferred by the several acts of the legislature, authorizing the execution of this great work, are not, strictly and legally speak- ing, confei'red for the benefit of the public ; the grant is a special, private franchise, made as well for the private emolument and advantage of the city as for the public good. The State, in its sovereign character, has no interest in it. It owns no part of the work. The whole investment, under the law, and the revenue and profits to be derived therefrom, are a part of the private' property of the city, as much so as the lands and houses belong- ing to it situate within its corporate limits. " The argument of the defendants' counsel confounds the powers in question with those belonging to the defendants in their character as a municipal or public body, — such as are granted exclusively for public purposes to counties, cities, towns, and villages, where the corporations have, if I may so speak, no private estate or interest in the grant. " As the powers in question have been conferred upon one of these public corporations, thus blending, in a measure, those con- ferred for private advantage and emolument with those already possepsed for public purposes, there is some difficialty, I admit, in separating them in the mind, and propicSrly distinguishing the one class from the other, so as to distribute the responsibility attach- ing to the exercise of each. 20 306 CONSTITUTIONAL LIMITATIONS. [CH. VIII. " But the distinction is quite clear and well settled, and the process of separation practicable. To this end, regard should be had, not so much to the nature and character of the various powers conferred, as to the object and purpose of the legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political, or mu- nicipal character. But if the grant was for purposes of private advantage and emolument, though the public may derive a com- mon benefit therefrom, the corporation quo hoc is to be regarded as a private "company. It stands on the same footing as would any individual or body of persons upon whom the like special franchises had been conferred.^ " Suppose the legislature, instead of the franchise in question, had conferred upon the defendants banking powers, or a charter for a railroad leading into the city, in the usual manner in which such powers are conferred upon private companies, could it be doubted that they would hold them in the same character, and be subject to the same duties and liabilities ? I cannot doubt but they would. These powers, in the eye of the law, would be entirely distinct and separate from those appertaining to the de- fendants as- a, municipal body. So far as related to the charter thus conferred, they would be regarded as a private company, and be subject to the responsibilities attaching to that class of institu- tions. The distinction is well stated by the Master of the Rolls in Moodalay v. East India Co,'' in answer to an objection made by counsel. There the plaintiff had taken a lease from the company, granting him permission to supply the inhabitants of Madras with tobacco for ten years. Before the expiration of that period, the company dispossessed him, and granted the privilege to another. The plaintiff, preparatory to bringing an action against the com- pany, filed a bill of discovery. One of the objections taken by the defendants was, that the removal of the plaintiff was incident to their character as a sovereign power, the exercise of which 1 Citing Dartmouth College ». Wood- v. Kaudolph, 31 Vt. 226 ; Small v. Dan- ward, 4 Wheat. 668, 672;. Philips w. Bury, ville, 51 Me. 359; Oliver v. Worcester, 1 Ld. Raym. 8 ; s. c, 2 T. R. 352 ; Allen 102 Mass. 489 ; s. c. 3 Am. Rep. 485 ; Phil- V. MoKeen, 1 Sumn. 297 ; People v. Morris, adelphia v. Fox, 64 Pa. St. 169 ; Detroit 13 Wend. 331-338 ; 2 Kent's Com. 275 v. Corey, 9 Mich. 165 ; People v. Hurlbut, (4th ed.) ; United States Bank v. Planters' 24 Mich. 44 ; s. o. 9 Am. Rep. 103 ; Bank, 9 Wheat. 907 ; Clark ». Corp. of Western College ». Cleveland, 12 Ohio, Washington, 12 Wheat. 40 ; Moodalay v. m. s. 375 ; Hewison v. New Haven, 37 East India Co., 1 Brown's Ch. R. 469. Conn. 475 ; s. o. 9 Am. Rep. 342 ; People See, in addition to the cases cited by the v. Batchellor, 53 N. Y. 128; Welsh u. St. court, Touchard v. Touchard, 5 Cal, 306 ; Louis, 73 Mo. 71. Gas Co. V. San Francisco, 9 Cal. 453; = 1 Brown's Ch. R. 469. Richmond v. Long, 17 Gratt. 376 ; Atkins OH, Tin.] THE GEADES OF MUNICIPAL GOVERNMENT. 307 could not be questioned in a bill or suit at law. The Master of the Rolls admitted that no suit would lie against a sovereign power for anything done in that capacity ; but he denied that the defendants came within the rule. ' They have rights,' he observed, ' as a sovereign power ; they have also duties as individuals ; if they enter into bonds in India, the sums secured may be recovered here. So in this case, as a private company, they have entered into a private contract, to which they must be liable.' It is upon the like distinction that municipal corporations, in their private character as owners and occupiers of lands and houses, are re- garded in the same light as individual owners and occupiers, and dealt with accordingly. As such, they are bound to repair bridges, highways, and churches ; are liable to poor rates ; and, in a word, to the discharge of any other duty or obligation to which an individual owner would be subject." i In Storrs v. City of Utica,^ it was held that a city, owing to the public the duty of keeping its streets in a safe condition for travel, was liable to persons receiving injury from the neglect to keep proper lights and guards at night around an excavation which had been made for the construction of a sewer, notwithstanding it had contracted for all proper precautions with the persons executing the work. And in the City of Detroit v. Corey ^ the corporation was held liable in a similar case, notwithstanding the work was required by the charter to be let to the lowest bidder. Manning, J., in speaking to the point whether the contractors were to be considered as the agents of the city, so that the maxim respondeat superior should apply, says : " It is to be observed that the power under which they acted, and which made that lawful which would otherwise have been unlawful, was not a power given to the city for governmental purposes, or a public municipal duty imposed on the city, as to keep its streets in repair, or the like, but a special legislative grant to the city for private purposes. 1 2 Inst. 703 ; Thursfleld v. Jones, Sir used for public purposes, the latter for T. Jones, 187 ; Rex v. Gardner, Cowp. 79; private purposes. While in the exercise Mayor of Lynn v. Turner, Cowp. 87 ; Hen- of the former, the corporation is a muni- ley V. Mayor of Lyme Regis, 6 Bing. 91 ; cipal government, and while in the exer- 8. c. in House of Lords, 1 Bing. N. C. 222. cise of the latter, is a corporate, legal in- See also Lloyd v. Mayor, &c. of New dividual." Ibid., per Foot, 3. See upon York, 5 N. Y. 369 ; Commissioners v. this point also Western Fund Savings So- Duckett, 20 Md. 468. " The corporation ciety v. Philadelphia, 31 Pa. St. 175 ; Louis- of the city of New York possesses two ville v. Commonwealth, 1 Duvall, 295; kindsof powers, — one governmental and People w. Common Council of Detroit, public, and, to the extent they are held 28 Mich. 228 ; ante, pp. 282-284 and notes, and exercised, is clothed with sover- ^ 17 N. Y. 104. eignty ; the other private, and, to the ex- ' 9 Mich. 165. Compare Mills v. Brook- tent they are held and exercised, is a legal lyn, 82 N. Y. 489 : Jones v. New Haven, Individual. The former are given and 34 Conn. 1. 308 CONSTITUTIONAL LIMITATIONS. [CH. VIIL The sewers of the city, like its works for supplying the city with water, are the private property of the city ; they belong to the city. The corporation and its corporators, the citizens, are alone interested in them ; the outside public or people of the State at large have no interest in them, as they have in the streets of the city, which are public highways. " The donee of such a power, whether the donee be an individ- ual or a corporation, takes it with the understanding — for such are the requirements of the law in the execution of the power — that it shall be so executed as not unnecessarily to interfere with the rights of the public, and that all needful and proper measures will be. taken, in the execution of it, to guard against accidents to persons lawfully using the highway at the time. He is individ- ually bound for the performance of these obligations ; he cannot accept the power divested of them, or rid himself of their perform- ance by executing them through a third person as his agent. He may stipulate with the contractor for their performance, as was done by the city in the present case, but he cannot thereby relieve himself of his personal liability, or compel an injured party to look to his agent, instead of himself, for damages." And in answer to the objection that the contract was let to the lowest bidder, as the law required, it is shown that the provision of law to that effect was introduced for the benefit of the city, to protect it against frauds, and that it should not, therefore, relieve it from any liability.^ 1 See also Rochester White Lead Co. lions. But this doctrine seems not to V. City of Rochester, 3 N. Y. 463 ; Grant obtain in Pennsylvania ; School Dist. v. V. City of Brooklyn, 41 Barb. 381 ; City Fuess, 98 Pa. St. 600 ; Susquehanna De- of Buffalo V. Holloway, 14 Barb. 101, and pot v. Simmons, 112 Pa. St. 384. If the 7N. Y. 493; Lloyd w. Mayor, &c. of New injury arises from something not col- York, 5 N. Y. 369; Delmonico v. Mayor, lateral to the work, the city is not liable, &c. of New York, 1 Sandf. 222 ; Barton v. as where horses are frightened by the Syracuse, 37 Barb. 292 ; Storrs v. Utica, noise of blasting in an adjoining street : 17 N. Y. 104 ; Springfield v. LeClaire, 49 Herrington t. Lansingburgh, 110 N. Y. III. 476 ; Blake v. St. Louis, 40 Mo. 569 ; 145 ; or a person is injured by the blast- Baltimore V. Pendleton, 15 Md. 12 ; St. ing. Blumb v. Kansas City, 84 Mo. 112 ; Paul V. Seitz, 3 Minn. 297 ; Denver u. Murphy v. Lowell, 128 Mass. 396. Corn- Rhodes, 9 Col. 554 ; Wilson V. Wheeling, pare Joliet v. Harwood, 86 111. 110. A 19 W. Va. 323; Birmingham ». Mc- municipal corporation is not liable for Cary, 84 Ala. 469 ; Logansport v. Dick, neglect to devise and construct a proper 70 Ind. 65 ; Brasso v. Buffalo, 90 N. Y. system of drainage. Carr v. Northern 679 ; Turner v. Newburgh, 109 N. Y. 301 ; Liberties, 85 Pa. St. 324. See ante, pp. 253, Circleville ». Neuding, 41 Ohio St. 465 ; 254 and notes. Cities are not liable for Jacksonville v. Drew, 19 Fla. 106 ; Joslyn the illegal conduct of officials in the dis- ». Detroit, 42 N. W. Rep. 50 (Mich.); charge of duty. Dillon, §§ 774-778, and McCoull ». Manchester, 8 S. E. Rep. 379 cases cited ; Grumbine v. Washington, 2 (Va.) ; also numerous oases collected and McArthur, 578. classified in Dillon on Municipal Corpora- The following are some of the more CH, VIII.] THE GRADES OF MUNICIPAL GOVEENMENT. 309 We have not deemed it important, in considering the subject embraced within this chapter, to discuss the various questions which might be suggested in regard to the validity of the proceed- ings by whicli it is assumed in any case that a municipal corpo- ration has become constituted. These questions are generally questions between the corporators and the State, with which pri- vate individuals are supposed to have no concern. In proceedings where the question whether a corporation exists or not arises recent cases in which the liability of mu- nicipal corporations for neglect of public duties has been considered : — For nuisance in highway, sewer, &c. : Todd V. Troy, 61 N. Y. 506 ; Masterton v. Mt. Vernon, 58 N. Y. 391 ; Merrifield v. Worcester, 110 Mass. 216 ; s. c. 14 Am. Rep. 592; Woodward v. Worcester, 121 Mass. 245 ; Chicago v. Brophy, 79 111. 277 ; Chicago V. O'Brennan, 66.111. 160; Wil- kins V. Rutland, 17 Atl. Rep. 735 (Vt.) ; Kibele v. Philadelphia, 105 Pa. St. 41; Duffly V. Dubuque, 63 Iowa, 171 ; Eunz v. Troy, 104 N. Y. 344 ; Langan v. Atchison, 35 Kan. 318. See Stock v. Boston, 149 Mass. 410 ; Ray v. St. Paul, 40 Minn. 458. For invasion of private right or property : Sheldon v. Kalamazoo, 24 Mich. 383 ; Bab- cock V. Buffalo, 56 N. Y. 268 ; Lee v. San- dy Hill, 40 N. Y. 442 ; Fhinizy v. Augusta, 47 6a. 260; Helena v. Tliompson, 29 Ark. 669 ; Kobs v. Minneapolis, 22 Minn. 169. For negligent construction of sew- ers : Nims v. Troy, 59 N. Y. 500 ; Van Pelt V. Davenport, 42 Iowa, 308 ; Rowe V. Portsmouth, 56 N. H. 291 ; Ashley v. Port Huron, 35 Mich. 296 ; s. c. 20 Am. Rep. 628, note ; Noonan v. Albany, 79 N. Y. 470; s. c. 35 Am. Rep. 540; Chi- cago V. Hesing, 83 111. 204 ; s. c. 26 Am. Rep. 378 ; Post v. Boston, 141 Mass. 189. For negligence in construction and im- provement of streets : Pekin v. Winkel, 77 111. 56 ; Bloomington v. Brokaw, 77 111. 194; Pekin v. Brereton, 67 111. 477 ; Chi- cago V. LanglasB, 66 111. 361 ; Mead v. Derby, 40 Conn. 205 ; Milledgeville v. Cooley, 55 Ga. 17 ; Prentiss v. Boston, 112 Mass. 43 ; Saltmarsh v. Bow, 66 N. H. 428 ; Sewall v. St. Paul, 20 Minn. 511 ; Kentworthy v. Ironton, 41 Wis. 647 ; Hoyt V. Hudson, 41 Wis. 105 ; Talbot v. Taunton, 140 Mass. 662; Gray s. Dan- bury, 54 Conn. 674. For defective side- walk : Springfield v. Doyle, 76 111. 202 ; Champaign v. Pattison, 60 SI. 62 ; Town- send V. Des Moines, 42 Iowa, 667 ; Rice V. Des Moines, 40 Iowa, 638 ; McAuley v. Boston, 113 Mass. 508 ; Harriman v. Bos- ton, 114 Mass. 241 ; Morse v. Boston, 109 Mass. 446 ; Hanscom v. Boston, 141 Mass. 242; McLaughlin v. Corry, 77 Pa. St. 109; Boucher v. New Haven, 40 Conn. 456; Congdon u. Norwich, 37 Conn. 414; Stewart v. Ripon, 38 Wis. 584 ; Cliap- man v. Macon, 65 Ga. 566; Moore v. Minneapolis, 19 Minn. 300 ; Furnell v. St. Paul, 20 Minn. 117 ; Omaha v. Olmstead, 5 Neb. 446; Higert v. Greencastle, 43 Ind. 574 ; Providence v. Clapp, 17 How. 161 ; Smith o. Leavenworth, 15 Kan. 81 ; Atchison v. King, 9 Kan. 650 ; Gillison v. Charleston, 16 W. Va. 282; s. c. 37 Am. Rep. 763 ; Cromarty w. Boston, 127 Mass. 329 ; 8. c. 34 Am. Rep. 381 ; Sherwood v. Dist. Columbia, 3 Mackey, 276; Sauls- bury V. Ithaca, 94 N. Y. 27 ; Pomfrey v. Saratoga, 104 N. Y. 459 ; Cloughessey v. Waterbury, 51 Conn. 405. For injury by limb falling from tree overhanging street : Jones V. New Haven, 34 Conn. 1. See Gubasko v. New York, 1 N. Y. Supp. 215. For injury by fall of an awning over sidewalk : Bohen v. Waseca, 82 Minn. 176 ; Larson v. Grand Forks, 3 Dak. 307. For failure to keep street in repair : Gorham w. Cooperstown, 69 N. Y. 660; Hines v. Lockport, 60 N. Y. 236; Bell V. West Point, 51 Miss. 262 ; Chicago V. McGiven, 78 III. 847 ; Alton v. Hope, 68 III. 167; Centralia v. Scott, 59 111. 129; Wlnbigler v. Los Angeles, 46 Cal. 36; Market v. St. Louis, 56 Mo. 189 ; Willey V. Belfast, 61 Me. 569; Bill v. Norwich, 39 Conn. 222 ; Lindholm v. St. Paul, 19 Minn. 245 ; Shartle u. Minneapolis, 17 Minn. 308 ; O'Leary v. Mankato, 21 Minn. 65; Griffin v. Williamstown, 6 W. Va. 312. For failure to keep sewers in re- pair: Munn V. Pittsburg, 40 Pa. St. 364; Jersey City v. Kieman, 50 N. J. L. 246. 310 CONSTITUTIONAL LIMITATIONS. [gh. vin. collaterally, the courts will not permit its corporate character to be questioned, if it appear to be acting under color of law, and recognized by the State as such. Such a question should be raised by the State itself, by quo warranto or other direct proceeding.^ And the rule, we apprehend, would be no different, if the consti- tution itself prescribed the manner of incorporation. Even in such a case, proof that the corporation was acting as such, under legislative action, would be sufficient evidence of right, except as against the State ; and private parties could not enter upon any question of regularity. And the State itself may justly be pre- cluded, on the principle of estoppel, from raising such an objection, where there has been long acquiescence and recognition.^ 1 State «. Carr, 5 N. H. 367 ; Presi- dent, &c. of Mendota v. Thompson, 20 III. 197; Hamilton u. President, &c. of Carthage, 24 111. 22. These were prose- cutions by municipal corporations for re- covery of penalties imposed by by-laws, and where the plea of nul tiel -corporation was interposed and overruled. See also Kayser v Bremen, 16 Mo. 88 ; Kettering V. Jacksonville, 50 111. 39 ; Bird v. Per- kins, 33 Mich. 28 ; Worley t>. Harris, 82 Ind. 493. " In People v. Maynard, 15 Mich. 463, 470,where the invalidity of an act organiz- ing a county, passed several years before, was suggested on constitutional grounds, Campbell, J., says ; " If this question had been raised immediately, we are not pre- pared to say that it would have been alto- gether free from difficulty. But inasmuch as the arrangement there indicated had been acted upon for ten years before the recent legislation, and had been recog- nized as valid by all parties interested, it cannot now be disturbed. Even in pri- vate associations the acts of parties inter- ested may often estop them from relying on legal objections, which might have availed them if not waived. But in pub- lic affairs, where the people have organ- ized themselves under color of law into the ordinary municipal bodies, and have gone on year after year raising taxes, making improvements, and exercising their usual franchises, their rights are properly regarded as depending quite as much on the acquiescence as on the regu- laribjr of their origin, and no ex post facto inquiry can be permitted to undo their corporate existence. Whatever may be the rights of individuals before such gen- eral acquiescence, the corporate stand- ing of the community can no longer be open to question. See Rumsey v. People, 19 N. Y. 41 ; and Lanning v. Carpenter, 20 N. Y. 474, where the effect of the in- validity of an original county organiza- tion is very well considered in its public and private bearings. There have been direct legislative recognitions of the new division on several occasions. The exer- cise of jurisdiction being notorious and open in all such cases, the State as well as county and town taxes being all levied under it, there is no principle which could justify any court, at this late day, in going back to inquire into the regularity of the law of 1857." A similar doctrine has been applied in support of the official character of persons who, without au- thority of law, have been named for mu- nicipal officers by State legislation, and whose action in such offices has been acquiesced in by the citizens or authori- ties of the municipality. See People v. Salomon, 64 111 51 ; People v. Lothrop, 24 Mich. 235. Compare Kimball v. Al- corn, 45 Miss. 151. But such acquies- cence could not make them local officers and representatives of the people for new and enlarged powers subsequently at- tempted to be given by the legislature. People V. Common Council of Detroit, 28 Mich. 228. Nor in respect to powers not purely local. People v. Springwells, 25 Mich. 153. And see People v. Albertson, 56 N. Y. 50. CH. IX.] FEDERAL PEOTECTION TO PEESON, ETC. 311 CHAPTER IX. PROTECTION TO PERSON AND PEOPEETY UNDER THE CONSTITUTION OP THE UNITED STATES. As the government of the United States was to be one of enu- merated powers, it was not deemed important by the framers of the Constitution that a bill of rights should be incorporated among its provisions. If, among the powers conferred, there was none which would authorize or empower the government to deprive the citizen of any of those fundamental rights which it is the object and the duty of government to protect and defend, and to insure which is the sole purpose of bills of rights, it was thought to be at least unimportant to insert negative clauses in that instrument, inhibiting the government from assuming any euch powers, since the mere failure to confer them would leave all such powers be- yond the sphere of its constitutional authority. And, as Mr. Ham- ilton argued, it might seem even dangerous to do so. " For why declare that things shall not be done which there is no power to do ? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed ? I will not contend that such a pro- vision would confer a regulating power ; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge, with a semblance of rea- son, that the Constitution ought not to be charged with the ab- surdity of providing against thq abuse of an authority which was not given, and that the provision against restraining the liberty . of the press afforded a clear implication that a right to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the nu- merous handles which would be given to the doctrine of construc- tive powers, by the indulgence of an injudicious zeal for bills of rights." 1 It was also thought that bills of rights, however important under a monarchical government, were of no moment in a consti- tution of government framed by the people for themselves, and under which public affairs were to be managed by means of agen- I FederaUst, No. 84. 312 CONSTITUTIONAL LIMITATIONS. [CH, IX. cies selected by the popular choice, and subject to frequent change by popular action. " It has been several times truly remarked, that bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right, assented to by Charles the First, in the beginning of his reign. Such also was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of Parliament, called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people sur- render nothing ; and, as they retain everything, they have no need of particular reservations. ' We, the people op the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.' This is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government." ^ Reasoning like this was specious, but it was not satisfactory to many of the leading statesmen of that day, who believed that " the purposes of society do not require a surrender of all our rights to our ordinary governors ; that there are certain portions of right not necessary to enable them to carry on an effective government, and which experience has nevertheless proved they will be constantly encroaching on, if submitted to them ; that •there are also certain fences which experience has proved pecu- liarly efficacious against wrong, and rarely obstructive of right, which yet the governing powers have ever shown a disposition to weaken and remove." ^ And these governing powers will be no less disposed to be aggressive when chosen by majorities than when selected by the accident of birth, or at the will of privileged classes. Indeed if, during the long struggle for constitutional liberty in England, covering the whole of the seventeenth century, importance was justly attached to a distinct declaration and enumeration of individual rights on the part of the government, 1 Federalist, No. 84, by Hamilton, " Jefferson's Works, "Vol. HI. p. 201. CH. IX.] FEDEKAL PKOTECTION TO PERSON, ETC. 313 when it was still in the power of the governing authorities to infringe upon or to abrogate them at any time, and when, conse- quently, the declaration could possess only a moral force, a similar declaration would appear to be of even more value in the Consti- tution of the United States, where it would constitute authoritative law, and be subject to no modification or repeal, except by the people themselves whose rights it was designed to protect, nor even by them except in the manner by the Constitution provided.^ The want of a bill of rights was, therefore, made the ground of a decided, earnest, and formidable opposition to the confirmation of the national Constitution by the people ; and its adoption was 1 Mr. Jefferson suras up the objections to a bill of rights in the Constitution of the United States, and answers them as follows : " 1. That the rights in question are reserved by the manner in which the federal powers are granted. Answer: A constitutive act may certainly be so formed as to need no declaration of rights. The act itself has the force of a declaration, as far as it goes ; and if it goes to all material points, nothing more is wanting. In the draft of a constitution which I had once a thought of proposing in Virginia, and printed afterwards, I en- deavored to reach all the great objects of public liberty, and did not mean to add a declaration of rights. Probably the ob- ject was imperfectly executed; but the deficiencies would have been supplied by others in the course of discussion. But in a constitutive act which leaves some precious articles unnoticed, and raises implications against others, a declaration of rights becomes necessary by way of supplement. This is the case of our new federal Constitution. This instrument forms us into one State, as to certain objects, and ^ves us a legislative and executive body for these objects. It should therefore guard us against their abuses of power, within the field sub- mitted to them. 2. A positive declara- tion of some essential rights could iiot be obtained in the requisite latitude. Answer : Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can. 3. The limited powers of the federal government, and jealousy of the subordinate governments, afford a security, which exists in no other instance. Answer : The first member of this seems resolvable into the first objec- tion before stated. The jealousy of the subordinate governments is a precious re- liance. But observe that those govern- ments are only agents. They must have principles furnished them whereon to found their opposition. The declaration of rights will be the text whereby they will try all the acts of the federal gov- ernment. In this view it is necessary to the federal government also; as by the same text they may try the oppo- sition of the subordinate governments. 4. Experience proves the ine£Scacy of a bill of rights. True. But though it is not absolutely efficacious, under all circum- stances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. There is a remarkable difference between the characters of the inconve- niences which attend a declaration of rights, and those which attend the want of it. The inconveniences of the declara- tion are, that it may cramp government in its useful exertions. But the evil of this is short-lived, moderate, and repara- ble. The inconveniences of the want of a declaration are permanent, afflictive, and irreparable. They are in constant pro- gression from bad to worse. The execu- tive, in our governments, is not the sole, it is scarcely the principal, object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for many years. That of the executive will come in its turn; but it will be at a remote period." Letter to Madison, March 15, 1789, Jefferson's Works, Vol. III. p. 4. See also same volume, pp. 13 and 101 ; Vol. II. pp. 329, 358. 314 CONSTITUTIONAL LIMITATIONS. [OH. EC. only secured in some of the leading States in connection with the recommendation of amendments which should cover the ground.^ The clauses inserted in the original instrument, for the protec- tion of person and property, had reference mainly to the action of the State governments, and were made limitations upon their power. The exceptions embraced a few cases only, in respect to which the experience of both English and American history had forcibly demonstrated the tendency of power to abuse, not when wielded by a prince only, but also when administered by the agencies of the people themselves. Bills of attainder were prohibited to be passed, either by the Congress ^ or by the legislatures of the several States.^ Attain- der, in a strict sense, means an extinction of civil and political rights and capacities ; and at the common law it followed, as of course, on conviction and sentence to death for treason ; and, in greater or less degree, on conviction and sentence for the different classes of felony. A bill of attainder was a legislative conviction for alleged crime, with judgment of death. Such convictions have not been uncom- mon under other governments, and the power to pass these bills has been exercised by the Parliament of England at some periods in its history, under the most oppressive and unjustifiable circum- stances, greatly aggravated by an arbitrary course of procedure, which had few of the incidents of a judicial investigation into alleged crime. For some time beforp the American Revolution, however, no one had attempted to defend it as a legitimate exer- cise of power ; and if it would be unjustifiable anywhere, there were many reasons why it would be specially obnoxious under a free government, and why consequently its prohibition, under the existing circumstances of our country, would be a matter of more than ordinary importance. Every one must concede that a legis- lative body, from its numbers and organization, and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamor, is not properly constituted to try with coolness, caution, and im- partiality a criminal charge, especially in those cases in which the popular feeling is strongly excited, — the very class of cases most likely to be prosecuted by this mode. And although it would be conceded that, if such bills were allowable, they should properly be presented only for offences against the general laws 1 For the various recommendations ^ Constitution of United States, art. 1, by Massachusetts, South Carolina, New § 9. Hampshire, Virginia, New Tork, North ' Constitution of United States, art 1, Carolina, and Rhode Island, see 1 Elliott's § 10. Debates, 822-834. CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 315 of the land, and be proceeded with on the same full opportunity for investigation and defence which is afforded in the courts of the common law, yet it was remembered that in practice they were often resorted to because an obnoxious person was not subject to punishment under the general law,^ or because, in proceeding against him by this mode, some rule of the common law requiring a particular species or degree of evidence might be evaded, and a conviction secured on proofs that a jury would not be suffered to accept as overcoming the legal presumption of innocence. Whether the accused should necessarily be served with process ; what degree or species of evidence should be required ; whether the rules of law should be followed, either in determining what constituted a crime, or in dealing with the accused after convic- tion, — were all questions which would necessarily address them- selves to the legislative discretion and sense of justice ; and the very qualities which are essential in a court to protect individuals on trial before them against popular clamor, or the hate of those in power, were precisely those which were likely to prove weak or wanting In the legislative body at such a time.^ And what could be more obnoxious in a free government than the exercise of such a power by a popular body, controlled by a mere majority, fresh from the contests of exciting elections, and quite too apt, under the most favorable circumstances, to suspect the motives of their adversaries, and to resort to measures of doubtful propriety to secure party ends ? Nor were legislative punishments of this severe character the only ones known to parliamentary history ; there were others of a milder form, which were only less obnoxious in that the conse- quences were less terrible. Those legislative convictions which 1 Cases of this description were most ble in btirbarity as possible, the list oi numerous during the reign of Hen;j>' the proscribed was carefully kept secret VIII.,' and among the victims was Crom- until after the time fixed for their appear- well, who is said to have first advised ance I Macaulay's History of England, that monarch to resort to this objection- c. 12. able proceeding. Even the dead were at- * This was equally true, whether the tainted, as in the case of Richard III., and attainder was at the command of the later, of the heroes of the Commonwealth, king, as in the case of Cardinal Pole's The most atrocious instance in history, mother, or at the instigation of the popu- however, only relieved by its weakness lace, as in the case of Wentworth, Earl of and futility, was the great act of attain- Stratford. The last infliction of capital der passed in 1688 by the Parliament of punishment in England under a. bill of James II., assembled in Dublin, by which attainder was upon Sir John Fenwick, in between two and three thousand persons the reign of William and Mary. It is were attainted, their property confiscated, worthy of note that in the preceding and themselves sentenced to death if they reign Sir John had been prominent in failed to appear at a time named. And, the attainder of the unhappy Monmouth, to render the whole proceeding as horri- Macaulay's History of England, c. 6. 316 CONSTITUTIONAL LIMITATIONS, [CH. IX. imposed punishments less than that of death were called bills of pains and penalties, as distinguished from bills of attainder ; but the constitutional provisions we have referred to were undoubt- edly aimed at any and every species of legislative punishment for criminal or supposed criminal offences ; and the term " bill of attainder " is used in a generic sense, which would include bills of pains and penalties also.^ The thoughtful reader will not fail to discover, in the acts of the American States during the Revolutionary period, sufficient reason , for this constitutional provision, even if the still more monitory history of the English attainders had not been so freshly remembered. Some of these acts provided for the forfeiture of the estates, within the Commonwealth, of those British subjects who had withdrawn from the jurisdiction because not satisfied that grievances existed sufficiently serious to justify the last resort of an oppressed people, or because of other reasons not satisfactory to the existing authorities ; and the only investigation provided for was an inquiry into the desertion. Others mentioned particu- lar persons by name, adjudged them guilty of adhering to the enemies of the State, and proceeded to inflict punishment upon them, so far as the presence of property within the Commonwealth would enable the government to do so.^ These were the resorts of a time of extreme peril ; and if possible to justify them in a period of revolution, when everything was staked on success, and when the public safety would not permit too much weight to ' Fletcher v. Peck, 6 Cranoh, 87 ; Story counsel, and no recognized rule of evi- on Constitution, § 1344 ; Cummings v. dence governed the inquiry." Per Milkr, Mis80uri,4 Wall. 277; ^a: parte Garland, 4 J., In Ex parte Garland, 4 Wall. 333, Wall. 333; Drehman v. Stifle, 8 Wall. 388. 595, 601. " I think it will be found that 2 gee Belknap's History of New Hamp- the following comprise those essential shire, c. 26 ; 2 Ramsay's History of South elements of bills of attainder, in addition Carolina, 351 ; 8 Rhode Island Colonial to the one already mentioned [which was Records, 609 ; 2 Arnold's History of that they declared certain persons at- Rhode Island, 360, 449; Thompson v. tainted and their blood corrupted, so that Carr, 5 N. H. 510 ; Sleght v. Kane, 2 it had lost all heritable property], which Johns. Cas. 236 ; Story on Const. (4th distinguish them from other legislation, ed.) § 1344, note. On the general subject and which made them so obnoxious to the of bills of attainder, one would do well statesmen who organized our govern- to consult, in addition to the cases in 4 ment: 1. They were convictions and Wallace, those of Blair «. Ridgeley, 41 sentences pronounced by the legislative Mo. 63 (where it was very elaborately department of the government, instead examined by able counsel) ; State v. of the judicial. 2. The sentence pro- Staten, 6 Cold. 233; Randolph v. Good, 3 nounced and the punishment inflicted W. Va. 551 ; Ex parte Law, decided by were determined by no previous law or Judge Erskine, in the United States Dis- fixed rule. 3. The investigation into the trict Court of Georgia, May Terra, 1866; guilt of the accused, if any such were State v. Adams, 44 Mo. 570; Beirne v. made, was not necessarily or generally Brown, 4 W. Va. 72 ; Peerce v. Carskiir conducted in his presence or that of his don, 4 W. Va. 234. CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 317 scruples concerning the private rights of those who were not aid- ing the popular cause, the power to repeat such acts under any conceivable circumstances in which the country could be placed again was felt to be too dangerous to be left in the legislative hands. So far as proceedings had been completed under those acts, before the treaty of 1783, by the actual transfer of property, they remained valid and effectual afterwards ; but so far as they were then incomplete, they were put an end to by that treaty.^ The conviction of the propriety of this constitutional provision has been so universal, that it has never been questioned, either in legislative bodies or elsewhere. Nevertheless, cases have recently arisen, growing out of the attempt to break up and destroy the government of the United States, in which the Supreme Court of the United States has adjudged certain action of Congress to be In violation of this provision and consequently void.^ The action 1 Jackson v. Munson, 3 Caines, 137. 2 On the 2d of July, 1862, Congress, by " an act to prescribe an oath of office, and for other purposes," enacted that "hereafter every person elected or ap- pointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon tlie duties of such office, take and subscribe the following oath or affirmation ; I, A B, do solemnly swear or affirm that I have never voluntarily borne arms against the United States since I have been a citizen thereof ; that I have voluntarily given no aid, countenance, counsel, or encourage- ment to persons engaged in armed hostility thereto ; that I have neitlier sought nor accepted, nor attempted to exercise, the functions of any office wliatever, under any authority or pretended authority in hostility to tlie United States ; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto. And I do fur- tlier swear or affirm that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all enemies, foreign and domestic ; that I will bear true faith and allegiance to the same ; that I take this obligation freely, without any mental reservation or purpose of evasion ; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God." On the 24th of January, 1866, Congress passed a supplementary act as follows : " No per- son after the date of this act sliall be ad- mitted to the bar of the Supreme Court of tlie United States, or at any time after the 4th of March next shall be admitted to the bar of any Circuit or District Court of the United States, or of the Court of Claims, as an attorney or counsellor of such court, or shall be allowed to appear and to be heard in any such court, by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed the oath " aforesaid. False swearing, under each of the acts, was made perjury. See 12 Stat- utes at Large, 602 ; 13 Statutes at Large, 424. In Ex parte Garland, 4 WaU. 333, a majority of the court heU] the second of these acts void, as partaking of the nature of a bill of pains and penalties, and also as being an ex post facto law. The act was looked upon as inflicting a punishment for past conduct ; the exaction of the oath being the mode provided for ascertaining the parties upon whom the act was in- tended to operate. See Drehman v. Stifle, 8 Wall. 596. The conclusion declared by the Supreme Court of the United States in Ex parte Garland had been previously reached by Judge Trigg, of the United States Circuit Court, in Matter of Bax- ter; by Judge Busteed, of the District Court of Alabama, in Matter of Shorter et al. ; and by Judge Erskine, of the Dis- 318 CONSTITUTIONAL LIMITATIONS. [oh. IX. referred to was designed to exclude from practice in the United States courts all persons who had taken up arms against the government during the recent rebellion, or who had voluntarily given aid and encouragement to its enemies ; and the mode adopted to effect the exclusion was to require of all persons, be- fore they should be admitted to the bar or allowed to practise, an oath negativing any such disloyal action. This decision was not at first universally accepted as sound ; and the Supreme Courts of West Virginia and of the District of Columbia declined to fol- low it, insisting that permission to practise in the courts is not a right, but a privilege, and that the withholding it for any reason of State policy or personal unfitness could not be regarded as the infliction of criminal punishment.^ The Supreme Court of the United States has also, upon the same reasoning, held a clause in the Constitution of Missouri, which, among other things, excluded all priests and clergymen from practising or teaching unless they should first take a similar oath of loyalty, to be void, overruling in so doing a decision of the Supreme Court of that State.^ Ex post facto laws are also, by the same provisions of the national Constitution already cited,* forbidden to be passed, either by the States or by Congress. trict Court of Georgia, in Ex parte Law. An elector cannot be excluded from the right to vote on the ground of being a deserter who has never been tried and convicted as such. Huber ». Reily, 53 Pa. St. 112; McCafferty v. Guyer, 59 Pa. St. 109 ; State a. Symonds, 57 Me. 148. See ante, p. 79, note. ^ See the cases Ex parte Magruder, American Law Register, Vol. VI. n. 8. p. 292 ; and Ex parte Hunter, American Law Register, Vol. VI. N. s. 410 ; 2 W. Va. 122 ; Ex parte Quarrier, 4 W. Va. 210. See also Cohen v. Wright, 22 Cal. 293. * Cummings v. Missouri, 4 Wall. 277. See also the case of State v. Adams, 44 Mo. 570, in which it was held that a legis- lative act declaring that the board of curators of St. Charles College had for- feited their office, was of the nature of a bill of attainder and void. The Missouri oath of loyalty was a very stringent one, and applied to electors. State, county, city and town officers, officers in any cor- poration, public or private, professors and teachers in educational institutions, attor- neys and counsellors, bishops, priests, deacons, ministers, elders, or other clergy- men of any denomination. The Supreme Court of Missouri had held this provision valid in the following cases : State v. Ga- resche, 36 Mo. 256, case of an attorney ; State V. Cummings, 3& Mo. 263, case of a minister, reversed as above stated ; State V. Bernoudy, 36 Mo. 279, case of the re- corder of St. Louis ; State v. McAdoo, 86 Mo. 452, where it is held that a certificate of election issued to one who failed to take the oath as required by the consti- tution was void. In Beirne ». Brown, 4 W. Va. 72, and Peerce ti. Carskadon, 4 W. Va. 234, an act excluding persons from the privilege of sustaining suits in the courts of the State, or from proceedings for a rehearing, except upon their taking an oath that tliey had never been engaged in hostile measures against the govern- ment, was sustained. And see State v. Neal, 42 Mo. 119. Contra, Kyle v. Jenkins, 6 W. Va. 371 ; Lynch v. Hoffman, 7 W. Va. 553. The case of Peerce v. Carskadon was reversed in 16 Wall. 234, being held covered by the case of Cummings v. Mis- souri, * Constitution of United States, art. 1, §§ 9 and 10. CH. rX.] FEDERAL PROTECTION TO PERSON, ETC. 319 At an early day it was settled by authoritative decision, in opposition to what might seem the more natural and obvious meaning of the term ex post facto, that in their scope and pur- pose these provisions were confined to laws respecting criminal punishments, and had no relation whatever to retrospective legis- lation of any other description. And it has, therefore, been re- peatedly held, that retrospective laws, when not of a criminal nature, do not come in conflict with the national Constitution, unless obnoxious to its provisions on other grounds than their retrospective character. " The prohibition in the letter," says Chase, J., in the leading case,^ " is not to pass any law concerning or after the fact ;. but the plain and obvious meaning and intention of the prohibition is this : that the legislatures of the several States shall not pass laws after a fact done by a subject or citizen, which shall have relation to such fact, and punish him for having done it. The prohibition, considered in this light, is an additional bulwark in favor of the personal security of the subject, to protect his person from pun- ishment by legislative acts having a retrospective operation. I do not think it was inserted to secure the citizen in his private rights of either property or contracts. The prohibitions not to make anything but gold and silver coin a tender in payment of debts, and not to pass any law impairing the obligation of con- tracts, were inserted to secure private rights ; but the restriction not to pass any ex post facto law was to secure the person of the subject from injury or punishment, in consequence of such law. If the prohibition against making ex post facto laws was intended to secure personal rights from being affected or injured by such laws, and the prohibition is sufficiently extensive for that object, the other restraints I have enumerated were unnecessary, and therefore improper, for both of them are retrospective. " I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3d. Every law that changes the pun- ishment, and inflicts a greater punishment than the law annexed to the crime when committed. 4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the of- fence, in order to convict the offender. All these and similar 1 Calder v. Bull, 3 Dall. 386, 390. 320 CONSTITUTIONAL LIMITATIONS. [CH, IX. laws are manifestly unjust and oppressive. In my opinion, the true distinction is between ex 'post facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law ; the former only are prohibited. Every law that takes away or impairs rights vested, agreeably to existing laws, is retrospective and is gen- erally unjust, and may be oppressive ; and there is a good general rule, that a law should have no retrospect ; but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their com- mencement ; as statutes of oblivion or of pardon. They are cer- tainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto, within the prohibition that mollifies the rigor of the criminal law ; but only those that create or aggravate the crime, or in- crease the punishment, or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time, or to save time from the statute of limitations, or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful, and the making an innocent action criminal, and punishing it as a crime. The expressions bx post facto laws are technical ; they had b6en in use long before the Revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors." ^ Assuming this construction of the constitutional provision to be correct, — and it has been accepted and followed as correct by the courts ever since, — it would seem that little need be said relative to the first, second, and fourth classes of ex post facto laws, as enumerated in the opinion quoted.^ It is not essential, 1 See also Fletcher v. Peck, 6 Cranch, La. Ann. 853 ; Huber v. Reily, 53 Pa. St. 87 ; Ogden ». Saunders, 12 Wheat. 213 ; 115 ; Wilson v. Ohio, &c. R. E. Co., 64 Satterlee v. Mathewson, 2 Pet. 380 ; Wat- 111. 542. That an act providing for the son V. Mercer, 8 Pet. 88 ; Charles Kiver punishment of an offence in respect to Bridge v. Warren Bridge, 11 Pet. 420; which prosecution is already barred is ex Carpenter v. Pennsylvania, 17 How. 456 ; pmt facto, see Moore v. State, 43 N. J. Cummings o. Missouri, 4 Wall. 277 ; Ex 203. Before a right to an acquittal has parte Garland, 4 Wall. 383 ; Baugher v. been " absolutely acquired by the comple- Nelson, 9 Gill, 299 ; Woart v. Winniok, 3 tion of the period of limitation, that period N. H. 473 ; Locke v. Dane, 9 Mass. 360 ; is subject to enlargement or repeal without Dash V. Van Kleek, 7 Johns. 477 ; Evans being obnoxious to the constitutional pro- V. Montgomery, 4 W. & S. 218 ; Tucker hibition." Com. v. Duffy, 96 Pa. St. 506. V. Harris, 13 Ga. 1 ; Perry's Case, 3 Gratt. 2 See Kring v. Missouri, 107 U. S. 221. 632; Municipality No. 1 v. Wheeler, 10 A constitutional amendment changed the La. Ann. 745 ; New Orleans v. Poutz, 14 judicial rule that conviction of one grade CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 321 however, in order to render a law invalid on these grounds, that it should expressly assume the action to which it relates to be criminal, or provide for its punishment on that ground. If it shall subject an individual to a pecuniary penalty for an act which, when done, involved no responsibility,^ or if it deprives a party of any valuable right — like the right to follow a lawful calling — for acts which were innocent, or at least not punishable by law when committed,^ the law will be ex post facto in the con- stitutional sense, notwithstanding it does not in terms declare the acts to which the penalty is attached criminal.^ But how far a law may change the punishment for a criminal offence, and make the change applicable to past offences, is certainly a question of great difficulty, which has been increased by the decisions made concerning it. As the constitutional provision is enacted for the protection and security of accused parties against arbitrary and oppressive legislative action, it is evident that any change in the law which goes in mitigation of the punishment is not liable to this objection.* But what does go in mitigation of the punish- ment ? If the law makes a fine less in amount, or imprisonment shorter in point of duration, or relieves it from some oppressive incident, or if it dispenses with some severable portion of the kgal penalty, no embarrassment would be experienced in reaching a conclusion that the law was favorable to the accused, and there- fore not ex post facto. But who shall say, when the nature of the punishment is altogether changed, and a fine is substituted for of murder bars a subsequent conviction b. c. 5 Am. Dec. 645 ; Carson «. Carson, 40 of a higher grade. Before it took effect Miss. 349. An act providing for destruc- a crime had been committed. After it tion of liquor as a means of abating an ex- on a plea of guilty the prisoner was con- isting liquor nuisance does not authorize victed of murder in the second degree, a criminal proceeding, and is not ex post but the conviction was reversed, and on faclo. McLane v. Bonn, 70 Iowa, 762. new trial he was convicted in the first See Drake v. Jordan, 73 Iowa, 707. degree. A bare majority of the court " The repeal of an amnesty law by a held the act ex post /at«o as to him, as al- 'constitutional convention was held in tering the rules of evidence and the pun- State v. Keith, 63 N. C. 140, to be ex post ishment. The minority considered the facto as to the cases covered by the law. change one in procedure, and as the evl- An act to validate an invalid conviction dence in question, viz., his conviction in would be ex post fcuto. In re Murphy, 1 the second degree, of the effect of which Woolw. 141. he was deprived, came into existence * Strong v. State, 1 Blackf . 198 ; Keen after the amendment, held the act good. w. State, 3 Chand. 109; Boston v. Cum- iFalconerw. Campbell, 2 McLean, 195; mins, 16 Ga. 102; Woart v. Wimiick, 3 Wilson V. Ohio, &c. B. R. Co., 64 111. 542. N. H. 473; State «. Arlin, 39 N. H. 179; 2 Cummings v. Missouri, 4 Wall. 277 ; Clarke v. State, 23 Miss. 261 ; Maul v. Ex parte Garland, 4 Wall. 333. But a State, 25 Tex. 166. To provide an alter- divorce is not a punishment, and it may native punishment of a milder form is therefore be authorized for causes hap- not ex post facto. Turner ». State, 40 pening previous to the passage of the Ala. 21. divorce act. Jones v. Jones, 2 Overt. 2 ; 21 322 CONSTITUTIONAL LIMITATIONS. [CH. IX. the pillory, or imprisoriment for whipping, or imprisonment at hard labor for life for the death penalty, that the punishment is diminished, or at least not increased by the change made ? What test of severity does the law or reason furnish in these cases ? and must the judge decide upon his own view of the pain, loss, ignominy, and collateral consequences usually attending the pun- ishment ? or may he take into view the peculiar condition of the accused, and upon that determine whether, in his particular case, the punishment prescribed by the new law is or is not more severe than that under the old. In State v. Arlin,i the respondent was charged with a robbery, which, under the law as it existed at the time it was committed, was subject to be punished by solitary imprisonment not exceed- ing six months, and confinement for life at hard labor in the State prison. As incident to this severe punishment, he was en- titled by the same law to have counsel assigned him by the government, to process to compel the attendance of witnesses, to a copy of his indictment, a list of the jurors who wex'e to try him, . Houston, 22 Ga. 606 ; Williams v. Newport, 12 Bush, 438 ; Territory v. Pyle, 1 Oreg. 149 ; Bryan V. Cattell, 16 Iowa, 538. If the term of an office is fixed by the Constitution, the legislature cannot remove the officer, — except as that instrument may allow, — either directly, or indirectly by abolish- ing the office. People v. Dubois, 23 III. 547 ; State v. Messmore, 14 Wis. 163; Commonwealth v. Gamble, 62 Pa. St. 343 ; 8. 0. 1 Am. Rep. 422 ; Lowe v. Com- monwealth, 3 Met. (Ky.) 240; State v. Wiltz, 11 La. Ann. 489 ; Goodin v. Tho- man, 10 Kan. 191 ; State v. Draper, 60 Mo. 353. Or by shortening the constitu- tional term. Brewer ». Davis, 9 Humph. 212. Compare Christy v. Commission- ers, 39 Cal. 3. But if after the election of a justice, his town becomes part of a city, his office ceases. Gertum v. Board, 109 N. Y. 170. Nor can the legislature take from a constitutional officer a por- tioti of the characteristic duties belong- ing to the office, and devolve them upon an office of its own creation. State v, Brunst, 26 Wis. 413 ; s. c. 7 Am. Rep. 84, disapproving State ». Dews, R. M. Charl. 397. Compare Warner v. People, 2 Denio, 272 ; People u. Albertson, 66 N. Y. 60; People v. Raymond, 37 N. Y. 428; King V. Hunder, 66 N. C. 603 ; s. c. 6 Am. Rep. 754. Nor, where the office is elec- tive, can the legislature fill it, either di- rectly, or by extending the term of the incumbent. People v. Bull, 46 N. Y. 57 ; People u. McKinney, 52 N. Y. 374. See also on these points cases, p. 79, supra. Compare People v. Flanagan, 66 N. Y. 237. As to control of municipal corpora- tions, see further Marietta v. Fearing, 4 Ohio, 427 ; Bradford v. Cary, 5 Me. 339; Bush V. Shipman, 5 111. 186; Trustees, CH. IX.] FEDERAL PKOTECTION TO PERSON, ETC, 333 same liabilities as individuals, yet this property, so far as it has been derived from the State, or obtained by the exercise of the ordinary powers of government, must be held subject to control by the State, but under the restriction only, that it,, is not to be appropriated to uses foreign to those for which it has been ac- quired. And the franchises conferred upon such a corporation, for the beneftt of its citizens, must be liable to be resumed at any time by that authority which may mould the corporate powers at its will, or even revoke them altogether. The greater power will comprehend the less.^ If, however, a grant is made to a munici- &c. V. Tatman, 13 111. 27 ; People v. Moi^ ris, 13 Wend. 325; Mills u. Williams, 11 Ired. 558; People B.Banvard, 27Cal.470; ante, eh. viii. But where the,State con- tracts as an individual, it is bound as an individual would be : Davis v. Gray, 16 Wall. 203 ; even though the contract creates an official relation. Hall u. Wis- consin, 103 U. S. 5. 1 In East Hartford v. Hartford Bridge Co., 10 How. 511, 533, Mr. Justice Wood- bury, in speaking of the grant of a ferry franchise to a municipal corporation, says : " Our opinion is . . . that the parties to this grant did not by their charter stand in the attitude towards each other of making a contract by it, such as is con- templated in the Constitution, and as could not be modified by subsequent legis- lation. Tlie legislature was acting here on the one part, and public municipal and political corporations on the other. They were acting, too, in relation to a public object, being virtually a highway across the river, over another highway up and down the river. From this standing and relation of these parties, and from the subject-matter of their action, we think that the doings of the legislature as to this ferry must be considered rather as public laws than as contracts. They re- lated to public interests. They changed as those interests demanded. The gran- tees, likewise the towns, being mere or- ganizations for public purposes, were lia- ble to have their public powers, rights, and duties, modified or abolished at any moment by the legislature. They are in- corporated for public, and not private, objects. They are allowed to hold priv- ileges or property only for public pur- poses. The members are not sharehold- ers nor joint partners in any corporate estate which they can sell or devise to others, or which can be attached and levied on for their debts. Hence, gener- ally, the doings between them and the legislature are in the nature of legislation rather than compact, and subject to all the legislative conditions just named, and therefore to be considered as not violated by subsequent legislative changes. It is hardly possible to conceive the grounds on which a different result could be vin- dicated, without destroying all legislative sovereignty, and checking most legisla- tive improvements and amendments, as well as supervision over its subordinate public bodies." A different doctrine was advanced by Mr. Justice Barculo, in Ben- son V. Mayor, &c. of New York, 10 Barb. 234, who cites in support of his opinion, that ferry grants to the city of New York could not be taken away by the legisla- ture, what is said by Chancellor Kent, (2 Kent's Com. 275), that " public corpora- tions . . . may be empowered to take and hold private property for municipal uses ; and such property is invested with the security of other private rights. So cor- porate franchises attached to public cor- porations are legal estates, coupled with an interest, and are protected as private property." This is true in a general sense, and it is also true that, in respect to such property and franchises, the same rules of responsibility are to be applied as in the case of individuals. Bailey v. Mayor, &c. of New York, 3 Hill, 581. But it does not follow that the legislature, under its power to administer the government, of which these agencies are a part, and for the purposes of which the grant has been made, may not at any time modify the municipal powers and privileges, by trans- fferring the grant to some other agency, or revoking it when it seems to have be- come unimportant. A power to tax is 334 CONSTITUTIONAL LIMITATIONS. [CH. IX. pal corporation charged with a trust in favor of an individual, private corporation, or charity, the interest which the cestui que trust has under the grant may sustain it against legislative rev- ocation ; a vested equitable interest being property in the same sense and entitled to the same protection as a legal.^ Those charters of incorporation, however, which are granted, not as a part of the machinery of the government, but for the private benefit or purposes of the corporators, stand upon a not private property or a, vested right which when once conferred upon a mu- nicipality by legislative act cannot be subsequently modified or repealed. The grant of such power is not a contract. Williamson v. New Jersey, 130 U. S. 189 ; Richmond v. Richmond, &c. R. R. Co., 21 Gratt. 604, 611. See post 355, note, 2. In People V. Power, 26 111. 187, 191, Breese, J., in speaking of a law which provided that three-fourths of the taxes collected in the county of Sangamon, with certain de- ductions, should be paid over to the city of Springfield, which is situated therein, says : " While private corporations are regarded as contracts which the legisla- ture cannot constitutionally impair, as the trustee of the public interests it has the exclusive and unrestrained control over public corporations ; and as it may create, so it may modify or destroy, as public exigency requires or the public interests demand. Coles v. Madison County, Breese, 115. Their whole ca- pacities, powers, and duties are derived from the legislature, and subordinate to that power. If, then, the legislature can destroy a county, they can destroy any of its parts, and take from it any one of its powers. The revenues of a county are not the property of the county, in the sense in which revenue of a private per- son or corporation is regarded. The whole State has an interest in the reve- nue of a county ; and for the public good the legislature must have the power to direct its application. The power con- ferred upon a county to raise a revenue by taxation is a political power, and its application when collected roust neces- sarily be within the control of the legis- lature for political purposes. This act of the legislature nowhere proposes to take from the county of Sangamon, and give to the city of Springfield, any prop- erty belonging to the county, or revenues collected for the use Of the countjr. But if it did it would not be objectionable. But, on the contrary, it proposes alone to ap- propriate the revenue which may be col- lected by the county, by taxes levied on property both in the city and county, in certain proportions ratably to the city and county." It is held in People v. In- gersoU, 58 N. Y. 1, that the franchise to levy taxes by a county for county pur- poses was not exercised by the county as agent for the State, but as principal. And see Bush v. Shipraan, 5 111. 186 ; Rich- land County V. Lawrence County, 12 III. 1 ; Sangamon Co. v. Springfield, 63 111. 66; Borough of Dunmore's Appeal, 62 Pa. St. 374; Guilford v. Supervisors of Chenango, 18 Barb. 615. and 13 N. Y. 143 ; ante, pp. 288-294, and cases cited. 1 See Town of Pawlet v. Clark, 9 Cranch, 292, and Terrett v. Taylor, 9 Cranch, 43. The municipal corporation holding property or rights in trust might even be abolished without affecting the grant ; but the Court of Chancery might be empowered to appoint a new trustee to take charge of the property, and to execute the trust. Montpelier v. East Montpelier, 29 Vt. 12. Power to repeal a charter cannot be exercised so as to injure creditors already entitled to pay- ment. Morris v. State, 62 Tex. 728. A municipal corporation, like the State, may enter into contracts by legislative action. Where, for example, a village by ordinance grants to a railroad com- pany permission to use the streets of the village for its road-bed, on condition of grading and gravelling them at its own expense, the ordinance when accepted constitutes a contract from which neither party can withdraw. Cincinnati, &c. R. R. Co. V. Carthage, 36 Ohio St. 631. See also Hovelman v. Kansas City Ry. Co., 79 Mo. 632 ; Coast Line Ry. Co. v. Savannah, 30 Fed. Rep. 646 ; Los Angeles v. Water Co., 61 Cal. 65 ; Chicago, Mun., &c. Co. 1). Lake, 22 N. B. Rep. 616 (III.). CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 335 different footing, and are held to be contracts between the legis- lature and the corporators, having for their consideration the lia- bilities and duties which the coi-poi-ators assume by ^.ccepting them ; and the grant of the franchise can no more be resumed by the legislature, or its benefits diminished or impaired without the consent of the grantees, than any other grant of property or val- uable thing, unless the right to do so is reserved in the charter itself.i As the power to grant unam'endable and irrepealable 1 Dartmouth College v. ■Woodward, 4 Wheat. 518 ; Trustees of Vincennes Uni- versity V. Indiana, 14 How. 268 ; Planters' Bank v. Sharp, 6 How. 301 j Piqua Bank V. Knoop, 16 How. 869; Binghamton Bridge Case, 3 Wall. 51 ; Norris v. Trus- tees of Abingdon Academy, 7 G. & J. 7 ; Grammar School ». Burt, 11 Vt. 632; Brown v. Hummel, 6 Pa. St. 86 ; State V. Hey ward, 3 Rich. 889 ; People v. Man- hattan Co., 9 Wend. 351 ; Commonwealth V. Cnllen, 13 Pa. St. 132; Commercial Bank of Natchez u. State, 14 Miss. 599 ; Backus V. Lebanon, 11 N. H. 19; Michi- gan State Bank v. Hastings, 1 Doug. (Mich.) 225 ; Bridge Co. v. Hoboken Co., 13 N. J. Eq. 81 ; Miners' Bank o. United States, 1 Greene (Iowa), 553; Edwards v. Jagers, 19 Ind. 407 ; State v. Noyes, 47 Me. 189; BrufEet v. G. W. R. R. Co., 25 111. 353; People f. Jackson & Michigan Plank Road Co., 9 Mich. 285 ; Bank of the State v. Bank of Cape Fear, 13 Ired. 75; Mills «. Williams, 11 Ired. 558; Haw- thorne 0. Calef, 2 Wall. 10; Wales v. Stetson, 2 Mass. 143; Nichols v, Bertram, 3 Pick. 342; King ». Dedham Bank, 15 Mass. 447 ; State v. Tombeckbee Bank, 2 Stew. 30; Central Bridge v. Lowell, 15 Gray, 106; Bank of the Dominion v. McVeigh, 20 Gratt. 457 ; Sloan ».,Pacifi6 R. R. Co., 61 Mo. 24 ; State «. Richmond, &c. R. R. Co., 73 N. C. 527 ; Turnpike Co. V. Davidson Co., 3 Tenn. Ch. 397 ; Detroit V. Plank Road Co., 43 Mich. 140 ; Penn. R. R. Co. v. Baltimore, &c. R. R. Co., 60 Md. 263 ; Com. v. Erie & W. Tr. Co., 107 Pa. St. 112; Houston & T. C. Ry. Co. V. Texas & P. Ry. Co., 70 Tex. 649. The mere passage of an act of in- corporation, however, does not make the contract ; and it may be repealed prior to a full acceptance by the corporators. Mississippi Society v. Musgrove, 44 Miss. 820; B. c. 7 Am. Rep. 723. Or amended, Cincinnati, H. & L R. R. Co. v. Clifford, 113 Ind. 460. See, further, Chinclecla- mouohe L. & B. Co. v. Com., 100 Pa. St. 438. After the adoption of a constitu- tional amendment allowing amendment and repeal of charters, a corporation, pre- viously chartered, accepted acts of the legislature. Held that its charter thereby became subject to alteration under the amendment, and that it was affected by a constitutional amendment passed there- after. Penn. R. R. Co. v. Duncan, 111 Pa. St. 352. In affirming this decision it is held that the corporation took its charter subject to changes in the consti- tution aud general laws of the State. Penn. R. R. Co. ». Miller, 132 U. S. 75. An act, passed after the granting of a charter, allowing the corporation in a proper case to be wound up, is valid. A corporation is subject to such reason- able regulation as the legislature may prescribe short of a material interfer- ence with its privileges. Chicago Life Ins. Co. 0. Needles, 113 U. S. 574. The provision in a railroad charter prescrib- ing the manner in which it may take lands for its purposes, only gives a rem- edy which may be altered. Mississippi R. R. Co. V. McDonald, 12 Heisk. 54. Giving the right of cumulative voting to stockholders in a corporation with an ir- repealable charter, which provides that each share shall have one vote, is a violai> tion of contract. State v. Greer, 78 Mo. 188. It is under the protection of the decision in the Dartmouth College Case that the most enormous and threatening powers in our country have been created; some of the great and wealthy corpora- tions actually having greater influence in the country at large, and upon the leg^- lation of the country, than the States to which they owe their corporate existence. Every privilege granted or right conferred — no matter by what means or on what pretence — being made inviolable by the Constitution, the government is frequently found stripped of its authority in very im- 336 CONSTITUTIONAL LIMITATIONS. [CH. IX. charters is one readily susceptible of being greatly abused, to the prejudice of important public interests, and has been greatly abused in the past, the people in a majority of the States, in framing or amending their constitutions, have prudently guarded against it by reserving the riglit to alter, amend, or repeal all laws that may be passed, conferring corporate powers. These provi- sions give protection from the time of their adoption, but the improvident grants theretofore made are beyond their reach.^ In portant particulars, by unwise, careless, or corrupt legislation; and a clause of the fed- eral Constitution, whose purpose was to preclude the repudiation of debts and just contraets.protects and perpetuates the ^ vil. And as to the right to regulate charges for transportation of persons and prop- erty, see post, 734. In Mills V. Williams, 11 Ired. 558, 561, Pearson, J., states the difference between the acts of incorporation of public and private corporations as follows: "The substantial distinction is this : Some cor- porations are created by the mere will of the legislature, there being no other party interested or concerned. To this party a portion of the power of the legislature is delegated, to be exercised for the general good, and subject at all times to be modi- fled, changed, or annulled. Other cor- porations are the result of contract. The legislature is not the only party interested ; for, although it has a public purpose to be accomplished, it chooses to do it by the instrumentality of a second party. These two parties make a contract. The legislature, for and in consideration of cer- tain labor and outlay of money, confers upon the party of the second part the privilege of being a corporjition, with cer- tain powers and capacities. The expecta- tion of benefit to the public is the moving consideration on one side; that of ex- pected remuneration for the outlay is tlie consideration on the other. It is a contract, and therefore cannot be modified, changed, or annulled, without the consent of both parties." An incorporated academy, whose endowment comes exclusively from the public, is a public corporation. Dart c;. Houston, 22 Ga. 506. Compare State V. Adams, 44 Mo. 570. 1 Respecting the power to amend or repeal corporate grants, some troublesome questions are likely to arise which have only as yet been hinted at in the decided cases. Corporations usually acquire prop- erty under their grants ; and any property or any rights which become vested under a legitimate exercise of the powers granted, no legislative act can take away. Com- monwealth V. Essex Co., 13 Gray, 239 ; Railroad Co. v. Maine, 96 U. S. 499 ; Sink- ing Fund Cases, 99 U. S. 700; Attorney- General V. Railroad Companies, 35 Wis. 425 ; Petroit v. Detroit & Howell P. R. Co.,43 Mich. 140. See;)osi,710, 711. But a legislature may grant to aiiotiier cor- poration the franchises of an existing one, and may authorize the taking of its prop- erty upon compensation made. Green- wood V. Freight Co., 105 U. S. 13. A new constitution may allow water rates to be fixed by a public board, although the company had under the law of its organization the right of representation upon the board. Spring Valley Water Works V. Schottler, 110 U. S. 347. In many cases the property itself becomes valueless unless its employment in the manner contemplated in the corporate grant may be continued ; as in the case, for instance, of railroad property ; and whatever individual owners of such prop- erty might do without corporate powers, it must be competent for the stockholders to do after their franchises are taken away. Without speculating on the diffi- culties likely to arise, Aference is made to the following case*, in which the re- served power to alter or repeal corporate grants has been considered or touched upon : Worcester v. Norwich, &c. R. R. Co., 109 Mass. 103 : Railroad Commission- ers V. Portland, &c. R. R. Co., 63 Me. 269 ; B. c. 18 Am. Rep. 208; State o. Maine Cent. R. R. Co., 66 Me. 488 ; Ames v. Lake Superior R. R. Co., 21 Minn. 201 ; Sprigg V. Telegraph Co., 46 Md. 67 ; State V. Com'rs of R. R. Taxation, 37 N. J. 228 ; State v. Mayor of Newark, 35 N. J. 157 ; West Wis. R. R. Co. u. Supervisors, CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 337 many States the constitutions also prohibit special charters, and all corporations are formed by the voluntary association of indi- viduals under general laws.^ Perhaps the most interesting question which arises in this dis- cussion is, whether it is competent for the legislature to so bind up its own hands by a grant as to preclude it from exercising for the future any of the essential attributes of sovereignty in regard to any of the subjects within its jurisdiction ; whether, for instance, it can agree that it will not exercise the power of taxation, or the police power of the State, or the right of eminent domain, as to certain specified property or persons ; and whether, if it shall undertake to do so, the agreement is not void on the general principle that the legislature cannot diminish the power of its successors by irrepealable legislation, and that any other rule might cripple and eventually destroy the government itself. If the legislature has power to do this, it is certainly a very dan- gerous power, exceedingly liable to abuse, and may possibly come in time to make the constitutional provision in question as pro- lific of evil as it ever has been, or is likely to be, of good. So far as the power of tax?ition is concerned, it has been so often decided by the Supreme Court of the United States, though not without remonstrance on the part of State courts,^ that an 35 Wis. 257 ; Union Improvement Co. v. nection with the General Statute under Commonwealth, 69 Pa. St. 140 ; 111. Cent, which they are entered into, constitute K. R. Co. ti. People, 95 111. 313 ; 8. c. the charter. I Am. & Eng. R. R. Cas. 188; Rode- '^ Mechanics' & Traders' Bank v. De- macher v. Milwaukee, &c. R. R. Co., 41 bolt, 1 Ohio St. 591 ; Toledo Bank v. Iowa, 297; s. o. 20 Am. Rep. 592; Gor- Bond, 1 Ohio St. 622; Knoop v. Piqua man v. Pacific R. R. Co., 26 Mo. 441 ; Bank, 1 Ohio St. 603 ; Milan & R. Plank Gardner i: Hope Ins. Co., 9 R. 1. 194 ; s. c. Road Co. v. Husted, 3 Ohio St. 578 ; Pis- II Am. Rep. 238 ; Yeaton v. Bank of Old cataqua Bridge o. N. H. Bridge, 7 N. H. rom.,21Gratt. 693; Tomllnson».JesBUp, 35; Brewster v. Hough, 10 N. H. 138; 15 Wall. 454 ; Tomlinson v. Branch, 15 Backus v. Lebanon, 11 N. H. 19 ; Thorpe Wall. 460 ; Miller v. State, 15 Wall. 478 ; u. R. & B. R. R. Co., 27 Vt. 140 ; Brainard Holy oke Co. v. Lyman, 15 Wall. 500 ; De- v. Colchester, 31 Conn. 407 ; Mott v. Penn- troit V. Detroit & H. P. R. Co., 43 Mich, sylvania R. R. Co., 30 Pa. St. 9 ; East 140 ; Ashnelot R. R. Co. v. Elliott, 58 N. H. Saginaw Salt Manuf. Co. v. East Saginaw, 461 . 19 Mich. 2-59 ; West Wis. R. Co. v. Super- Where no power to amend a charter visor of Trempeleau Co., 35 Wis. 257, 265 ; has been reserved, amendments may nev- Attorney-General v. Chicago, &c. R. R. ertheless be made with the consent of the Co., 35 Wis. 425, 672. See also the dis- corporation, but the corporation cannot senting opinion of Mr. Justice Miller, m bind its shareholders by the acceptance Washington University «. Rouse, 8 Wall, of amendments which efiFect fundamental 4.39, 441, in which the Chief Justice. and changes in its character or purpose. See Justice Field concurred. Also Raleigh, Gray v. Navigation Co., 2 W. & S. 156 ; &c. R. R. Co. v. Reid, 64 N. C. 156. That 8. c. 37 Am. Deo. 500 ;N5tevens v. Rut- one legislature cannot deprive another of land, &c. R. R. Co., 29 Vt7y45. the right to amend a charter by delegat- 1 Where corporations are thus formed, ing to a city power to grant corporate the articles of association, taken in con- rights, see State v. Hilbert, 72 Wis. 184. 22 338 CONSTITUTIONAL LIMITATIONS. [CH. IX. agreement by a State, for a consideration received or supposed to be received, that certain property, rights, or franchises shall be exempt from taxation, or be taxed only at a certain agreed rate, is a contract protected by the Constitution, that the question can no longer be considered an open one.^ In any case, h,owever, there must be a consideration, so that the State can be supposed to have received a beneficial equivalent ; for it is conceded on all sides that, if the exemption is made as a privilege onlj, it may be revoked at any time.^ And it is but reasonable that the exemp- tion be construed with strictness.^ 1 New Jersey v. Wilson, 7 Cranch, 164 ; Gordon v. Appeal Tax Court, 8 How. 133 ; Piqna Bank v. Knoop, l&How. 369 ; Ohio Lite & Trust Co. v. Debolt, 16 How. 416 ; Dodge v. Woolsey, 18 How. 331 ; Mechanics' & Traders' Bank v. Debolt, 18 How. 380; Mechanics' & Traders' Bank v. Thomas, 18 How. 384,; McGee v. Mathis, 4 Wall. 143 ; Home of the Friend- less V. House, 8 Wall. 430 ; Washington University v. Rouse, 8 Wall. 439 ; Wil- mington R.*R. Co. V. Reid, 13 Wall. 264; Raleigh & Gaston R. R. Co. v. Held, 13 Wall. 269 i Humphrey v. Pegues, 16 Wall. 244; Pacific R. R. Co. v. Maguire, 20 Wall. 36 ; New Jersey v. Tard, 95 U. S. 104 ; Parrington v. Tennessee, 95 U. S. 679; University v. Illinois, 99 U. S. 309; New Orleans v. Houston, 119 U. S. 265. See also Atwater v. Woodbridge, 6 Conn. 223 ; Osborne ». Humphrey, 7 Conn. 335 ; Parker v. Redfleld, 10 Conn. 490 ; Lan- don V. Litchfield, 11 Conn. 251 ; Herrick V. Randolph, 13 Vt. 625; Armington v. Barnet, 15 Vt. 745 ; O'Donnell v. Bailey, 24 Miss. 386 ; St. Paul, &c. R. R. Co. v. Parcher, 14 Minn. 297 ; Grand Gulf R. R. Co. 0. Buck, 63 Miss. 246 ; Central R. R. Co. V. State, 64 Ga. 401 ; St. Louis, &c. E. R. Co. V. Lof tin, 30 Ark. 693 ; Prop'rs Mt. Auburn Cem. v. Cambridge, 22 N. E. Rep. 66 (Mass.), where an exemption from all public taxes was held to cover a sewer assessment. 2 Christ Church v. Philadelphia, 24 How. 300; Brainard v. Colchester, 81 Conn. 407. See also Commonwealth v. Bird, 12 Mass. 442 ; Dale v. The Gover- nor, 3 Stew. 387 ; Com'rs Calhoun Co. v. Woodstock Iron Co., 82 Ala. 151. If an exemption from taxation exists in any case, it must be the result of a delil^erate intention to relinquish this prerog:at!ive of sovereignty, distinctly manifested. Eas- ton Bank v. Commonwealth, 10 Pa. St. 450 ; Providence Bank v. Billings, 4 Pet. 514; Christ Church v. Philadelphia, 24 How. 300 ; Gilman v. Sheboygan, 2 Black, 610; Louisville & N. R. R. Co. v. Palmes, 109 U. S. 244; Memphis Gaslight Co. V. Shelby Co., 109 U. S. 398 ; Chicago, B. & K. C. Ry. Co. v. Guffey, 120 U. S. 569; State o. Hilbert, 72 Wis. 184; Herrick v. Randolph, 18 Vt. 525; East Saginaw Salt Mannf. Co. v. East Sag- inaw, 19 Mich. 259 ; s. 0. in error, 13 Wall. 373; People v. Roper, 35 N. Y. 629 ; People o. Commissioners of Taxes, 47 N. Y. 501; People v. Davenport, 91 N. Y. 674 ; Lord v. Litchfield, 36 Conn. 116; s. c. 4 Am. Rep. 41; Erie Railway Co. V. Commonwealth, 66 Pa. St. 84 ; s. c. 5 Am. Rep. 361 ; Bradley v. McAtee, 7 Bush, 667 ; 8. c. 3 Am. Rep. 309; North Missouri R. R. Co. v. Maguire, 49 Mo. 490 ; 8. 0. 8 Am. Rep. 141 ; Illinois Cent. R. R. Co. V. Irvin, 72 111. 462. Upon tha reorganization of a corporation which had enjoyed an exemption, it passes, if all the " privileges " of the old pass to the new ; not, if the " rights and franchises " alone pass. Memphis & L. R. R. R. Co. V. R. R. Com'rs, 112 U. S. 609 ; St. Louis Iron M. & S. Ry. Co. v. Berry, 113 U. S. 466 ; Tennessee v. Whitworth, 117 U. S. 139. See Detroit St. Ry. Co. v. Guthard, 51 Mich. 180. * See Cooley on Taxation, 146, and cases cited. Hoge v. Railroad Co., 99 U. S. 348; Railway Co. v. Philadelphia, 101 U. S. 628; Vioksburg, S. & P. R. R. Co. V. Dennis, 116 U. S. 665 ; Chicago, B. 6 K. C. Ry. Co. V. Guffey, 120 U. S. 669; Yazoo & M. R. R. Co. i;. Thomas, 132 U. S. 174. CH. IX.] FEDERAL PEOTECTION TO PERSON, ETC. 339 The power of the legislature to preclude itself in any case from exercising the power of eminent domain is not so plainly decided. It must be conceded, under the authorities, that the State may grant exclusive franchises, — like the right to construct the only railroad which shall be built between certain termini ; or the only bridge which shail be permitted over a river between specified limits ; or to own the only ferry which shall be allowed at a cer- tain point,^ — but the grant of an exclusive privilege will not pre- vent the legislature from exercising the power of eminent domain in respect thereto. Franchises, like every other thing of value, and in the nature of property, within the State, are subject to this power ; and any of their incidents may be taken away, or them- selves altogether annihilated, by means of its exercise.^ And it is believed that an express agreement in the charter, that the power of eminent domain should not be so exercised as to impair or affect the franchise granted, if not void as an agreement be- yond the power of the legislature to make, must be considered as only a valuable portion of the privilege secured by the grant, and as such liable to be appropriated under the power of eminent domain. The exclusiveness of the grant, and the agreement against interference with it, if valid, constitute elements in its value to be taken into account in assessing compensation ; but appropriating the franchise in such a case no more violates the obligation of the contract than does the appropriation of land which the State has granted under an express or implied agree- ment for quiet enjoyment by the grantee, but which nevertheless may be taken when the public need requires.^ All grants are subject to this implied condition ; and it may well be worthy of 1 West River Bridge Co. v. T>ix, 16 R. R. Co. t>. Boston, &c. R. R. Co., HI Vt. 446, and 6 How. 507 ; Binghamton Mass. 125 ; b. c. 15 Am. Rep. 13. A way Bridge case, 3 Wall. 51 j Shorter w. Smith, may be condemned through a cemetery 9 Ga. 517 ; Pisqataqua Bridge v. N. H. in spite of a contract to the contrary. Bridge, 7 N.H. 85; Boston Water Power Tn re Twenty-Second St., 15 Phila. Co. V. Boston & Worcester R. R. Co., 409 ; 102 Pa. St. 108. The use of land 23 Pick. 360 ; Boston & Lowell R. R. held by the State under contract to re- 17. Salem & Lowell R. R., 2 Gray, 1; deliver possession may be condemned. Costar V. Brush, 25 Wend. 628; Call- Tait's Exec. «. Central Lunatic Asylum, fornia Telegraph Co. w. Alta Telegraph 84 Va. ^27. That property has been ac- Cc, 22 Cal. 398. quired by a corporation under the right ^'Matter of Kerr, 42 Barb. 119; En- of eminent domain does not prevent field Toll Bridge Co. v. Hartford & N. H. further appropriation of it unddr the R. R. Co.,*17 Conn. 40, .454 ; West River same right. Chicago, &c. R. R. Co. v. Bridge Co. v. Dix, 16 Vt. 446, and 6 How. Lake, 71 111. 333; Peoria, &c. R. R. Co. 507; Philadelphia & Gray's Perry Co's v. Peoria, &c. Co., 66 El. 174; Eastern Appeal, 102 Pa. St. 123. R. R. Co. v. Boston, &c. R. R. Co., Ill ' Alabama, &e. R. R. Co. v. Kenney, Mass. 125. See post,, pp. 647, note 1, 685, 89 Ala. 307 ; Baltimore, &c. Turnpike Co. note 1, and cases referred to. V. Union R. R. Co., 85 Md. 224 ; Eastern 340 CONSTITUTIONAX LIMITATIONS. [CH. Ef. inquiry, whether the agreement that a franchise granted shall not afterwards be appropriated can have any other or greater force than words which would make it an exclusive franchise, but which, notwithstanding, would not preclude a subsequent grant on making compensation.^ The words of the grant are as much in the way of the grant of a conflicting franchise in the one case as in the other. It has also been intimated in a very able opinion that the police power of the State could not be alienated even by express grant.2 And this opinion is supported by those cases where it 1 Mr. Greenleaf, in a note to his edi- tion of Craiae on Real Property, Vol. II. p. 67, says upon this subject : " In regard to the position that the grant of the fran- chise of a ferry, bridge, turnpike, or rail- road is in its nature exclusive, so that the State cannot interfere with it by the creation of another similar franchise tend- ing materially to impair its value, it is with great deference submitted that an important distinction should be observed between those powers of government which are essential attributes of sover- eignty, indispensable to be always pre- served in full vigor, such as the power to create revenues for public purposes, to provide for the common defence, to provide safe and convenient ways for the public necessity and convenience, and to take private property for public uses, and the like, and those powers which are not thus essentia], such as the power to alien- ate the lands and other property of the State, and to make contracts of service, or of purchase and sale, or the like. Powers of the former class are essential to the constitution of society, as without them no political community can well exist; and necessity requires that they should continue unimpaired. They are intrusted to the legislature to be exer- cised, not to be bartered away ; and it is indispensable that each legislature should assemble with the same measure of sov- ereign power which was held by its predecessors. Any act of the legislature disabling itself from the future exercise of powers intrusted to it for the public good must be void, being in effect a covenant to desert its paramount duty to the whole people. It is therefore deemed not com- petent for a legislature to covenant that it will not, under any circumstances, open another avenue for the public travel within certain limits, or in a certain term of time ; such covenant being an alien- ation of sovereign powers, and a violation of public duty." See also Bedfield on Railways {3d ed.). Vol. I. p. 258. That the intention to relinquish the right of eminent domain is not to be presumed in any legislative grant, see People v. Mayor, &o. of New York, 32 Barb. 102 ; Illinois & Michigan Canal v. Chicago & Rock Island Railroad Co., 14 111. 314 ; Eastern R. B. Co. V. Boston, &c. R. R. Co., Ill .Mass. 125; a. c. 15 Am. Rep. 13; Turn- pike Co. V. Union R. B. Co., 35 Md. 224. 2 " VTe think the power of the legisla- ture to control existing railways in this respect may be found in the general con- trol over the police of the country, which resides in the law-making power in all free States, and which is, by the fifth ar- ticle of the Bill of Rights of this State, expressly declared to reside perpetually and Inalienably in the legislature, which is perhaps no more than the enunciation of a general principle apphcable to all free States ; and which cannot therefore be violated so as to deprive the legis- lature of the power, even by express grant to any mere public or private cor- poration. And when the regulation of the police of a city or town, by general ordi- nances, is given to such towns and cities, and the regulation of their own internal police is given to railroads, to be carried into effect by their by-laws and other regulations, it is, of course, always, in all such cases, subject to the superior control of the legislature. That is a responsibil- ity which legislatures cannot divest them- selves of, if they would." Thorpe v. R. & B. R. R. Co., 27 Vt. 140, 149, per Redfidd, Ch. J. The legislature cannot make an irrepealable contract as to that which affects public morals or public health, so CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 341 has been held that licenses to make use of property in certain modes may be revoked by the State, notwithstanding they may be connected with grants and based upon a consideration.^ But this subject we shall recur to hereafter. It would seem, therefore, to be the prevailing opinion, and one based upon sound reason, that the State cannot barter away, or in any manner abridge or weaken, any of those essential powers which are inherent in all governments, and the existence of which in full vigor is important to the well-being of organized society ; and that any contracts to that end are void upon general prin- ciples, and cannot be saved from invalidity by the provision of the national Consti'tution now under consideration. If the tax as to limit the exercise of the police power over the subject-matter. Butcher's Union Co. u. Crescent City Co., Ill U. S. 746. See also Indianapolis, &c. R. E. Co. i;. Kercheval, 16 Ind. 84 ; Ohio, &c. R. R. Co. V. M'Clelland, 25 HI. 140. See State V. Noyes, 47 Me. 189, on the same subject. In Bradley ». McAtee, 7 Bush, 667 ; s. c. 3 Am. Rep. 309, it was decided that a provision in a city charter that, after the first improvement of a street, re- pairs should be made at the expense of the city, was not a contract ; and on its repeal a lot-owner, who had paid for the improvement, might have his lot assessed for the repairs. Compare Hamniett v. Philadelphia, 65 Pa. St. 146 ; s. c. 3 Am. Sep. 615. ^ See, upon this subject. Brick Pres- byterian Church 1). Mayor, &c. of New York, 5 Cow. 538 ; Vanderbilt v. Adams, 7 Cow. 349 ; State v. Sterling, 8 Mo. 697 ; Hirn v. State, 1 Ohio St. 15; Calder v. Kurby, 5 Gray, 597 ; Brimmer v. Boston, 102 Mass. 19. The power of the State, after granting licenses for the sale of liq- uors and receiving fees therefor, to re- voke the licenses by a general law forbid- ding sales, has been denied in some cases. See State v. Phalen, 3 Harr. 441 ; Adams V. Haohett, 27 N. H. 289 ; Boyd v. State, 36 Ala. 329. But there is no doubt this is entirely competent. Freleigh v. State, 8 Mo. 606; State v. Sterling, 8 Mo. 697; Calder v. Kurby, 5 Gray, 697 ; Met. Board of Excise .1'. Barrie, 84 N. Y. 657 ; Balti- more V. Clunet, 23 Md. 449 ; Fell v. State, 42 Md. 71 ; s. c. 20 Am. Rep. 83; Com- monwealth V. Brennan, 103 Mass. 70; McKinney v. Salem, 77 Ind. 213 ; Moore V. Indianapolis, 22 N. E. Rep. 424 (Ind.); La Croix v. Co. Com'rs, 50 Conn. 321 ; Brown v. State, 7 S. E. Rep. 916 (Ga.) ; Beer Company v. Massachusetts, 97 U. S. 25. Compare State v. Cooke, 24 Minn. 247; Pleuler c;. State, 11 Neb. 547. An additional license may be required within the period covered by a former one. Bow- land I). State, 12 Tex. App. 418. A mer- chant's license may be revoked by a po- lice regulation inconsistent with it. State V. Burgoyne, 7 Lea, 173. But a munici- pality cannot add to the statutory grounds for revocation. Lantz v. Hightstown, 46 N. J. L. 102. Grants of the right to es- tablish lotteries are mere privileges, and as such are revocable. Bass v. Nashville, Meigs, 421 ; s. c. 33 Am. Dec. 164 ; State ». Morris, 77 N. C. 512; Stone v. Missis- sippi, 101 U. S. 814 ; Justice v. Com., 81 Va. 209 ; State v. Woodward, 89 Ind. 110. But if they are authorized by the consti- tution, they cannot be aboUshed by the legislature. New Orleans v. Houston, 119 U. S. 265. In short, the State can- not, by any legislation irrevocablj- ham- per itself in the exercise of its police power. Toledo, &c. R. R. Co. v. Jackson- ville, 67 111. 37 ; Chicago Packing Co. v. Chicago, 88 111. 221 ; Beer Company v. Massachusetts, 97 U. S. 25; Fertilizing Co. V. Hyde Park, 97 U. S. 659; Stone v. Mississippi, 101 U. S. 814; People v. Commissioners, 69 N. Y. ^2. An act re- quiring all underground electric lines to be laid under the orders of a commission violates no contract rights of their own- ers. People V. Squire, 107 N. Y. 693. No doubt if a license is revoked for which the State has collected money, good faith . would require that the money be returned. Hirn v. State, 1 Ohio St. 16. 342 CONSTITUTIONAL LIMITATIONS. [CH. IX. cases are to be regarded as an exeeptioa to this statement, the exception is perhaps to be considered a nominal ratlier than a real one, since taxation is for the purpose of providing the State a revenue, and the State laws which have been enforced as con- tracts in these cases have been supposed to be based upon con- sideration, by which the State receives the benefit which would have accrued from an exercise of the relinquished power in the ordinary mode. Exclusive Privileges. Under the rulings of the federal Supreme Court, the grant of any exclusive privilege by a State, if lawfully made, is a contra,ct, and not subject to be recalled.^ As every exclusive privilege is in the nature of a monopoly, it may at some time become a question of interest, whether there are any, and if so what, limits to the power of the State to grant them. In former times, such grants were a favorite resort in England, not only to raise money for the personal uses of the monarch, but to reward favorites ; and the abuse grew to such enormous magni- tude that Parliament in the time of Elizabeth, and again in the time of James I. , interfered and prohibited them. What is more important to us is, that in 1602 they were judicially declared to be illegal .2 These, however, were monopolies in the ordinary oc- cupations of life ; and the decision upon them would not affect the special privileges most commonly granted. Where the grant is of a franchise which would not otherwise exist, no question can be made of the right of the State to make it exclusive, unless the constitution of the State forbids it ; because, in contemplation o£ law, no one is wronged when he is only excluded from that to which he never had any right. An exclusive right to build and maintain a toll bridge or to set up a ferry may therefore be granted ; and the State may doubtless limit, by the requirement of a license, the number of persons who shall be allowed to en- gage in employments the entering upon which is not a matter of common right, and which, because of their liability to abuse, may require special and extraordinary police supervision. The busi- ness of selling intoxicating drinks and of setting up a lottery are illustrations of such employments. But the grant of a monopoly in one of the ordinary and necessary occupations of life must be as clearly illegal in this country as in England ; and it would be impossible to defend and sustain it, except upon the broad ground that the legislature may control and regulate the ordinary em- ployments, even to the extent of fixing the prices of labor and of commodities. As no one pretends; that the legislature pos- 1 Ante, p. 338, and cases cited ; Slaugh- ^ Darcy v. AUain, 11 Eep. 84. ter-House Cases, 16 Wall. 36, 74. CH. IX.] FEDEEAL PROTECTION TO PERSON, ETC. 343 sesses such a power, and as its existence would be wholly inconsis- tent with regulated liberty, it must follow that lawful grants of special privileges must be confined to cases where they will take from citizens generally nothing which before pertained to them as of common right.^ Changes in the Creneral Laws. We have said in another place that citizens have no vested right in the existing general laws of the State which can preclude their amendment or repeal, and that there is no implied promise on the part of the State to protect its citizens against incidental injury occasioned by changes in the law. Nevertheless there may be laws which amount to proposi- tions on the part of the State, which, if accepted by individuals, will become binding contracts. Of this class are perhaps to be considered bounty laws, by which the State promises the payment of a gratuity to any one who will do any particular act supposed to be for the State interest. Unquestionably the State may re- peal such a law at any time ; ^ but when the proposition has been accepted by the performance of the act before the law is repealed, the contract would seem to be complete, and the promised gra- tuity becomes a legal debt.^ And where a State was owner of the stock of a bank, and by the law its bills and notes were to be received in payment of all debts due to the State, it was properly held that this law constituted a contract with those who should receive the bills before its repeal, and that a repeal of the law could not deprive these holders of the right which it assured. Such a law, with the acceptance of the bills under it, " comes within the definition of a contract. It is a contract founded upon a good and valuable consideration, — a consideration beneficial to the State ; as its profits are increased by sustaining the credit, 1 The grant of an exclusive privilege privilege of furnishing water. Kew Or- in slaughtering cattle in the vicinity ot leans Water Works v. Rivers, 115 U. S., New Orleans was upheld as an exercise 6^4 ; St. Tammany Water Works v. New of the police power, in the Slaughter^ Orleans Water Works, 120 U. S. 64 ; House Cases, 16 Wall. 86. But the legis- Citizens' Water Co. v. Bridgeport, &o. lature could not by a grant of this kind Co., 55 Conn. 1. make an irrepealable contract. In regard ^ Christ Church ». Philadelphia, 24 to public health and public morals a legis- How. 300 ; East Saginaw Salt Manuf. Cot lature cannot by any contract limit the a. East Saginaw, 19 Mich. 259 ; s. c. 2, exercise of the police power to the preju- Am. Rep. 82, and 13 Wall. 873. So as to dice of the general welfare. Butcher's' pension to a policeman: Pennie ». Keis, Union Co. v. Crescent City Co., Ill U. S. 80 Cal. 266 ; or an exemption from tax- 746. An irrepealable contract giving ex- ation to persons planting forest trees, elusive privileges with reference to light- Shiner v. Jacobs, 62 Iowa, 392. ing a city, may be made. New Orleans ' People v. Auditor-Gieneral, 9 Mich. Gaslight Co. v. Louisiana Light Co., 115 327. See Montgomery v. Kasson, 16 CaL U. S. 650 ; Louisville Gas Co. ». Citizens' 189; Adams v. Palmer, 51 Me. 480. Gas Co., 115 U. S. 683. So as to the 344 CONSTITUTIONAL LIMITATIONS. [OH. IX. and consequently extending the circulation, of the paper of the bank." i That laws permitting the dissolution of the contract of marriage are not within the intention of the clause of the Constitution under discussion, has been many times affirmed.^ It has been intimated, however, that, so far as property rights are concerned, the con- tract must stand on the same footing as any other, and that a law passed after the marriage, vesting the property in the wife for her sole use, would be void, as impairing the obligation of con- tracts.8 But certainly there is no such contract embraced in the marriage as would prevent the legislature changing the law, and vesting in the wife solely all property which she should acquire thereafter ; and if the property had already become vested in the husband, it would be protected in him, against legislative transfer to the wife, on other grounds than the one here indicated. " The obligation of a contract" it is said, " consists in its bind- ing force on the party who makes it. This depends on the laws in existence when it is made ; these are necessarily referred to in all contracts, and foi'ming a part of them as the measure of the obligation to perform tliem by the one party, and the right ac- quired by the other. There can be no other standard by w^hich to ascertain the extent of either, than that which the terms of the contract indicate, according to their settled legal meaning; when it becomes consummated, the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance by the remedies then in force. If any subsequent law affect to diminish the duty or to impair the right, it necessarily bears on the obligation of the contract, in favor of one party, to the injury of the other ; hence any law which in its operations amounts to a denial or obstruction of the rights accruing by a contract, though profess- ing to act only on the remedy, is directly obnoxious to the pro- » Woodrufe V. Trapnall, 10 How. 190. lingham c. Hook, 32 Kan. 185. So one See Winter v. Jones, 10 Ga. 190 ; Tur- requiring bonds payable to bearer to be man v. Nichol, 8 Wall. 44. A law which registered. Priestly v. Watkins, 62 Miss. makes coupons on State bonds receivable 798. See People v. Otis, 90 N. Y. 4S. for all taxes and dues is a contract, the But compare Gurnee v. Speer, 68 Ga. obligation of which no subsequent law can 711. impair. Antoni v. Wright, 22 Gratt. 833 ; = Per Marshall, Ch. J., Dartmouth Col- Hartman v. Greenhow, 102 U. S. 672; lege v. Woodward, 4 AVheat. 518, 629; Poindexter ». Greenhow, 114 U. S. 270. Maynard v. Hill, 125 U. S. 190; Hunt Compare Cornwall v. Com., 82 Va. 644 ; v. Hunt, 131 U. S. clxv. ; Maguire v. Com. V. Jones, 82 Va. 789 ; Ellett v. Com., Maguire, 7 Dana, 181 ; Clark ii. Clark, 8 S. E. Eep. 246 (Va.). So of county 10 N. H. 380; Crbnise v. Cronise, 54 Pa. warrants. People v. Hall, 8 Col. 485. An St. 255 ; Carson v. Carson, 40 Miss. 349 ; act, changing after issue the place of pay- Adams v. Palmer, 51 Me. 480. ment of mimicipal bonds, is bad. Dil- ' Holmes v. Holmes, 4 Barb. 295. CH. IX.] FEDEKA.L PROTECTION TO PEESON, ETC. 345 hibition of the Constitution." ^ « It is the civil obligation of con- tracts which [the Constitution] is designed to reach ; that is, the obligation which is recognized bj, and results from, the law of the State in which it is made. If, therefore, a contract when made is by the law of the place declared to be illegal, or deemed to be a nullity, or a nude pact, it has no civil obligation ; because the law in such cases forbids its having any binding efficacy or force. It confers no legal right on the one party, and no cor- respondent legal duty on the other. There is no means allowed or recognized to enforce it ; for the maxim is ex nudo pacto non oritur actio. But when it does not fall within the predicament of being either illegal or void, its obligatory force is coextensive with its stipulations." ^ 1 McCracken v. Hay ward, 2 How. 608 ; 612. " The obligation of a contract . . . is the law which binds the parties to per- form their agreement. The law, then, which has this binding obligation must govern and control tlie contract, in every shape in which it is intended to bear upon it, whether it affects its validity, con- struction, or discharge. It is, then, the municipal law of the State whether that be written or unwritten, which is emphatically the law of the con- tract made within the State, and must govern it throughout, whenever its per- formance is sought to be enforced." Washington, J., in Ogden v. Saunders, 12 Wheat. 213, 257, 259. " As I understand it, the law of the contract forms its obli- gation." Thompson, J., ibid. 302. " The obligation of the contract consists in the power and efficacy of tlie law which ap- plies to, and enforces performance of, the contract, or the payment of an equiv- alent for non-performance. The obliga- tion does not inhere and subsist in the contract itself, proprio vigore, but in tlie law applicable to the contract. This is the sense, I think, in which the Consti- tution uses the terra ' obligation.' " Trim- ble, J., ibid. 318. And see Van Baumbach V. Bade, 9 Wis. 559 ; Johnson v. Higgins, 3 Met. (Ky.) 566; People v. IngersoU, 58 K. Y. 1. Bequirement of a license tax for permission to do what a contract with the city gives authority to do, without " let, molestation, or hindrance," is void. Stein V. Mobile, 49 Ala. 362; 20 Am. Bep. 283. But licenses in general are subject to the taxing power. Home Ins. Co. V. Augusta, 93 U. S. 116; Reed v. Beall, 42 Miss. 472 ; Cooley on Taxation, 3t6, and cases cited. A law taxing a debt to the debtor and making him pay the tax and deduct the amount from the debt is valid. Lehigh V. R. E. Co. v. Com., 18 Atl. Rep. 410 (Pa.). So where the debtor, a foreign corporation, has paid for the privilege of being exempt from taxation. New York, L. E. & W. R. R. Co. v. Com., id. 412. A law giving interest on debts, which bore none when contracted, was held void in Goggans v. Turnispeed, 1 S. C. N. 8. 40 ; 8. c. 7 Am. Rep. 23. The legislature cannot authorize tlie compul- sory extinction of ground rents, on pay- ment of a sum in gross. Palairet's Ap- peal, 67 Pa. St. 479 ; 8. c. 5 Am. Rep. 450. A State law, discontinuing a public work, does not impair the obligation of con- tracts, the contractor having his just claim for damages. Lord v. Thomas, 64 N. Y. 107. A law giving an abutter a right to damages when a railroad is laid in the street is valid as to changes there- after made by a railroad, though a city ordinance had given it the right to use the street. Drady v. Des Moines, &c. Co., 57 Iowa, 393. See also Mulholland v. Des Moines, &c. Co., 60 Iowa, 740. A statute providing for reversion of land condemned for railroad purposes if work on the road has ceased for eight years is valid. The property right does not attach to the land independent of its use for public purposes. Skillman v. Chicago, &o. By., Co. 43 N. W. Bep. 275 (Iowa). 2 Story on Const. § 1380. Slave con- tracts, which were legal when made, are not rendered invalid by the abolition of slavery ; nor can the States make them 346 CONSTITUTIONAL LIMITATIONS. [CH. IX. Such being the obligation of a contract, it is obvious that the rights of the parties in respect to it are liable to be affected in many ways by changes in the laws, which it could not have been the intention of the constitutional provision to preclude. " There are few laws which concern the general police of a State, or the government of its citizens, in their intercourse with each other or with strangers, which may not in some way or other affect the contracts which they have entered into or may thereafter form. For what are laws of evidence, or which concern remedies, frauds, and perjuries, laws of registration, and those which affect land- lord and tenant, sales at auction, acts of limitation, and those which limit the fees of professional men, and the charges of tavern-keepers, and a multitude of others which crowd the codes of every State, but laws which may affect the validity, construc- tion, or duration, or discharge of contracts ? " ^ But the changes in these laws are not regarded as necessarily affecting the obliga- tion of contracts. Whatever belongs merely to the remedy may be altered according to the will of the State, provided the altera- tion does not impair the obligation of the contract ; ^ and it does not impair it, provided it leaves the parties a substantial remedy, according to the course of justice as it existed at the time the contract was made.^ void by their constitutions, or deny rem- edies for tlieir enforcement. White u. Hart, 13 Wall. 646 ; Osbom v. Nicholson, 13 Wall. 654 ; Jacoway v. Denton, 25 Ark. 641. An act of indemnity held not to relieve a sheriff from his obligation on his ofScial bond to account for moneys which had been paid away under mili- tary compulsion. State v. Gatzweiler, 49 Mo. 17 ; B. c. 8 Am. Rep. 119. The set- tled judicial construction of a statute, so far as contract rights are thereunder ac- quired, is to be deemed a part of the statute itself, and enters into and becomes ft part of the obligation of the contract ; and no subsequent change in construction can be suffered to defeat or impair the contracts already entered into. Doug-- lass V. Pike County, 101 U. S. 677, and cases cited. Levy v. Hitsche, 40 La. Ann. 600. But such construction is not " settled " by a single decision. McLure V. Melton, 24 S. C. 559. The same rule applies to the settled construction of a constitution. Louisiana v. Filsbury, 105 U. S. 278. 1 Washingtcm, J., in Ogden v. Saunders, 12 Wheat. 218, 269. As to the indirect modification of contracts by the operation of police laws, see ante, 340, 841, notes ; post, pp. 706-720. 2 Bronson v. Kinzie, 1 How. 311, 316, per Taney, Ch. J. 8 Stocking V. Hunt, 3 Denio, 274 ; Van Baumbach v. Bade, 9 Wis. 559 ; Bronson V. Kinzie, 1 How. 316; McCracken t. Hayward, 2 How. 608 ; Butler v. Palmer, 1 Hill, 324; Van Rensselaer v. Snyder, 9 Barb. 302, and 13 N. Y. 299 ; Conkey v. Hart, 14 N. Y. 22; Guild v. Rogers, 8 Barb. 502; Story v. Furman, 25 N. Y. 214; Coriell v. Ham, 4 Greene (Iowa), 455 ; Hey ward o. Judd, 4 Minn. 483 ; Swift V. Fletcher, 6 Minn. 550 ; Maynes V. Moore, 16 Ind. 116 ; Smith v. Packard, 12 Wis. 371; Grosvenor ». Chesley, 48 Me. 869 ; Van Rensselaer v. Ball, 19 N. Y. 100 ; Van Rensselaer v. Hays, 19 N. Y. 68 ; Litchfield v. McComber, 42 Barb. 288 ; Paschal v. Perez, 7 Tex. 348 ; Auld V. Butcher, 2 Kan. 135 ; Kenyon v. Stew- art, 44 Pa. St. 179 ; Clark v. Martin, 49 Pa. St. 299 ; Rison ». Farr, 24 Ark. 161 ; Oliver v. McCIure, 28 Ark. 555; Holland V. Dickerson, 41 Iowa, 367 ; Chicago Life Ins. Co. V. Auditor, 101 111. 82 ; Wales v. CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 347 Changes in Remedies. It has accordingly been held that laws ehanging remedies for the enforcement of legal contracts, or abolishing one remedy where two or more existed, may be per- fectly valid, even though the new or the remaining remedy be less convenient than that which was abolished, or less prompt and speedy.^ " Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct." ^ To take a strong instance : although the law at the Wales, 119 Has8. 89 ; Sanders v. Hills- borough Insurance Co., 44 N. H. 238; Huntzlnger v. Brock, 3 Grant's Cases, 243 ; Mechanics', &c. Bank Appeal, 31 Conn. 63; Garland v. Brown's Adm'r, 23 Gratt. 173 ; Chattaroi Ry. Co. v. Kin- ner, 81 Ky. 221. A requirement that be- fore a mandamus shall issue to compel the receipt in accordance with contract of coupons for taxes, the petitioner shall pay the tax, and on proving the genuine- ness of the coupons shall have it refunded, is valid, though adopted after the format tion of the contract. Antoni v. Green- how, 107 U. S. 769 ; Moore v. Greenhow, 114 U. S. 338. See Rousseau i>. New Or- leans, 35 La. Ann. 567. A statute pro- viding for a review of judgments does not enter into contracts so that it may not be changed. Rupert v. Martz, 116 Ind. 72. See United Cos. v. Weldon, 47 N. J. L. 59; State v. Slevin, 16 Mo. App. 641. But the collection of a special tax cannot be hindered by requiring, after it is voted, a special collection bond with local sure- ties : Edwards v. WiUiamson, 70 Ala. 145; or a new and cumbrous mode of collection. Seibert v. Lewis, 122 U. S. 284. 1 Ogden V. Saunders, 12 Wheat, 213 ; Beers v. Haughton, 9 Pet. 329 ; Tennes- see V. Sneed, 96 U. S. 69 ; Bumgardner v. Circuit Court, 4 Mo. 50 ; Tarpley v. Ha- roer, 17 Miss. 310 ; Danks v. Quackenbush, I Denio, 128, 3 Denio, 594, and 1 N. Y. 129 ; Bronson v. Newberry, 2 Doug.(Mich.), 38 ; Rockwell v. Hiibbell's Adm'rs, 2 Doug, (Mich.) 197; Evans v. Montgom- ery, 4 W. & S. 218 ; HoUoway v. Sher- man, 12 Iowa, 282 ; Sprecker v. Wakeley, II Wis. 432 J Smith v. Packard, 12 Wis. 371 ; Porter v. Mariner, 50 Mo. 364 ; Morse «. Goold, 11 N. T. 281 ; Penrose V. Erie Canal Co., 56 Pa. St. 46 ; Smith v. Van Gilder, 26 Ark. 527 ; Coosa River St. B. Co. V. Barclay, 30 Ala. 120 ; Bald- win V. Newark, 38 N. J. 168; Moore v. State, 43 N. J. 203; Newark Savings Bank v. Forman, 33 N. J. Eq. 436 ; Simp- son V. Savings Bank, 56 N. H. 466. 2 Sturges V. Crowninshield, 4 Wheat. 122, 200, per Marshall, Ch. J. ; Ward v. Farwell, 97 111. 593. A statute allowing the defence of want of consideration in a sealed instrument previously given does not violate the obligation of contracts. Williams i;. Haines, 27 Iowa, 251. See further Parsons v. Casey, 28 Iowa, 431 ; Curtis V. Whitney, 13 Wall. 68 ; Cook v. Gregg, 46 N. Y. 439. Right accruing under stipulation in a note to waive pro- cess and confess judgment may be taken away. Worsliam v. Stevens, 66 Tex. 89. A statutory judgment lien may be taken away. Watson v. New York Central R. R. Co., 47 N. Y. 167 ; Woodbury ». Grimes, 1 Col. 100. Confro, Gunn v. Barry, 16 Wall. 610. The- law may be so changed that a judgment lien shall not attach be- fore a levy. Moore v. Holland, 16 S. C. 16. It may be extended before it has expired. Ellis v. Jones, 51 Mo. 180. The mode of perfecting a lien may be changed before it has actually attached. White- head V. Latham, 83 N. C. 232. The value of a mechanic's lien may not be materially affected by a statute making consummate a previously inchoate right of dower. Buser v. Shepard, 107 Ind. 417. The obligation of the contract is not impaired if a substantial remedy remains. Rich- mond V. Richmond, &c. R. R. Co., 21 Gratt. 611. See Mabry v. Baxter, 11 Heisk. 682 ; Edwards v. Kearzey, 96 U. S. 595 ; Baldwin v. Newark, 38 N. J. 158; Augusta Bank v. Augusta, 49 Me. 507 ; Thistle v. Frostbury Coal Co., 10 Md. 129. It is competent to provide by law that all mortgages not recorded by a day specified shall be void. Vance v. 348 CONSTITUTIONAL LIMITATIONS. [CH. IX. time the contract is made permits the creditor to take the body of his debtor in execution, there can be no doubt of the right to abolish all laws for this purpose, leaving the creditor to his remedy against property alone. "Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it. But the State may refuse to inflict this punishment, or may withhold this means, and leave the contract in full . force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair the obligation." ^ Nor is there any constitutional objection to such a modification of those laws which exempt certain portions Qf a debtor's property from execution as shall increase the exemp- tions to any such extent as shall not take away or substantially impair the remedy, nor to the modifications being made applicable to contracts previously entered into. The State " may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic,, or articles of necessity in household furni- ture, shall, like wearing-apparel, not be liable to execution on judgments. Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be exercised or not, by every sovereignty, ac- cording to its own views of policy and humanity. It must reside in every State to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those pursuits which are necessary to the existence and well-being of every commun- ity."^ But a homestead exemption law, where none existed Vance, 32 La. Ann. 186 ; s. c. 108 U. S. Denver Bank, 3 Col. 332. See Coffin v. 514. See GilflUan v. Union Canal Co., Rich, 45 Me. 507 ; Weidenger v. Spruance, 109 U. S. 401 ; Gurnee v. Speer, 68 Ga. 101 III 278. '^^^- ■^ Sturges V. Crowninshield, 4 Wheat. Where the individual liability of offi- 122, per Marshall, Ch. J. ; Mason v. Haile, cers or stockholders in a corporation is a 12 Wheat. 370 ; Beers v. Haughton, 9 Pet. part of the contract itself, it cannot be 329 ; Penniman's Case, 103 U. S. 714 ; changed or abrogated as to existing debts. Sommers v. Johnson, 4 Vt. 278 ; .s. c. 24 Hawthorne v. Calef, 2 Wall. 10 ; Coming Am. Dee. 604 ; Ware ». Miller, 9 S. C. 13 ; V. McCuUongh, 1 N. Y. 47; Story v. Bronson ». Newberry, 2 Dong. (Mich.) 38; Furman, 25 N. Y. 214; Norris v. Wren- Maxey ». Loyal, 38 Ga. 531. A special shall, 34 Md. 494; Brown ». Hitchcock, 36 act admitting a party imprisoned on a Ohio St. 667 ; Providence Savings Insti- judgment for tort to take the poor debt- tute V. Skating Rink, 52 Mo. 452 ; St. ors' oath was sustained in Matter of Louis, &c. Co. V. Harbine, 2 Mo. App. 134. Nichols, 8 E. L 50. But where it is imposed as a penalty for « Branson v. Kinzie, 1 How. 311, 315, failure to perform some corporate or stat- per Tanei/, Ch. J. ; Rockwell v. Hubbell'a utory duty, it stands on the footing of all Adm'rs, 2 Doug. (Mich.) 197 ; Quacken- other penalties, and may be revoked in bush v. Danks, 1 Denio, 128, 3 Denio, 594, the discretion of the legislature. Union and 1 N. Y. 129 ; Morse v. Goold, 11 N. Y, Iron Co. V. Pierce, 4 Biss. 827 ; Bay City, 281 ; Sprecker ». Wakeley, 11 Wis. 432; &c. Co. V. Austin, 21 Mich. 390 ; Breitung Cusic v. Douglas, 3 Kan. 123 ; Maxey v. V. Lindauer, 37 Mich. 217; Gregory v. Loyal, 38 Ga. 531 ; Hardeman ». Downer, CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 349 before, cannot be applied to contracts entered into before its enactment ; ^ and in several recent cases the authority to increase exemptions and make them applicable to existing contracts has been altogether denied,^ on the ground that, while professedly operating upon the remedy only, they in effect impair the obliga- tion of the contract.^ And laws which change the rules of evidence relate to the remedy only ; and while, as we have elsewhere shown, such laws may, on general principles, be applied to existing causes of action, ^ so, too, it is plain that they are not precluded from such applica- tion by the constitutional clause we are considering.* And it has been held that the legislature may even take away a common-law remedy altogether, without substituting any in its place, if another and efficient remedy remains. Thus, a law abolishing distress for rent has been sustained as applicable to leases in force at its passage ; * and it was also held that an express stipulation in the lease, that the lessor should have this remedy, would not prevent the legislature from abolishing it, because this was a subject con- 39 Ga. 425 ; Hill v. Kessler,63 N. C. 437 ; Farley v. Dowe, 45 Ala. 324 ; Sheider v. Heidelberger, 45 Ala. 126 ; In re Kennedy, 2 S. C. 216 ; Martin v. Hughes, 67 N. C. 293 ; MauU v. Vaughn, 46 Ala. 134 ; Brei- tung V. Lindauer, 87 Midi. 217 ; Coleman V. Ballandi, 22 Minn. 144. 1 Gunn V. Barry, 15 Wall. 610 ; Ed- wards V. Kearzey, 96 U. S. 595 ; Home- stead Cases, 22 Gratt. 266; Lessley v. Pliipps, 40 Miss. 790 ; Foster v. Byrne, 76 Iowa, 295; Squire v. Mudgett, 61 N. H. 149. It may, however, be made applicable to previous rights of action for torts. Parker v. Savage, 6 Lea, 406 ; McAfee v. Covington, 71 Ga. 272. 2 Johnson v. Fletcher, 54 Miss. 628; 8. c. 28 Am. Rep. 388 ; Wilson v. Brown, 58 Ala. 62 ; s. c. 29 Am. Rep. 727 ; Dun- can !). Barnett, 11 S. C. 333 ; 8. c. 32 Am. Rep. 476 ; Harris v. AtistsU, 2 Bax. 148 ; Wright V. Straub, 64 Tex. 64 ; Cochran V. Miller, 74 Ala. 50 ; Cohn v. Hoffman, 45 Ark. 376. * " Statutes pertaining to the remedy are merely such as relate to the course and form of proceedings, but do not affect the substance of a judgment when pro- nounced." Per Merrick, Ch. J., in Mortun V. Valentine, 15 La. Ann. 150. See Wat- son V. N. Y. Central R. R. Co., 47 N. Y. 157 ; Edwards v. Kearzey, 96 U. S. 595. But if after the debt is contracted and be- fore judgment upon it, the debtor marries, it is held in Tennessee tliat he is thereby entitled to the exemption in land owned by him before. Dye v. Cook) 12 S. W. Rep. 631. ^ Neass v. Mercer, 15 Barb. 318 ; Rich V. Flanders, 39 N. H. 304; Howard v. Moot, 64 N. Y. 262 ; Henry v. Henry, 9 S. E. Rep. 726 (S. C.) ; poa, pp. 450-453. On this subject see the discussions in the federal courts. Sturges v. Crowninshield, 4 Wheat. 122; Ogden n. Saunders, 12 Wheat. 213 ; Bronson v. Einzie, 1 How. 311 ; McCracken v. Hayward, 2 How. 608 ; Curtis V. Whitney, 13 Wall. 68. An act declaring that no policy of life insurance shall be received in evidence, when the ap- plication is referred to in it, unless a copy thereof is attached to it, is valid. New Era Life Ass. v. Musser, 120 Pa. St. 384. But the rule that failure to register evi- dences of titles shall not render them in- admissible in,evidence, cannot be changed by a new constitution. This is put on the ground that the only means to establish and enforce the contract would be thus destroyed. Texas Mex. Ry. Co. ». Locke, 12 S. W. Rep. 80 (Tex.). 6 Van Rensselaer v. Snyder, 9 Barb. 302, and 13 N. Y. 299; Guild v. Rogers, 8 Barb. 502 ; Conkey v. Hart, 14 N. Y. 22. 350 CONSTITUTIONAL LIMITATIONS. [CH. K. oeraing wliicli it was not competent for the parties to eoaitraot in such manner as to bind the hands of the State. In the language of the court : " If this is a subject on which parties can contract, and ifTtheir contracts when made become ►by virtue of the Con- stitution of the United States superior to the power of the legislar ture, then it follows that whatever at any time exists as part of the machinery for the administration of justice may be per- petuated, if parties choose so to agree. That this can scarcely have been within the contemplation of the makers of the Con- stitution, and that if it prevail as law it will give rise to grave inconveniences, is quite obvious. Every such stipulation is in its own nature conditional upon the lawful continuance of the pro- cess. The State is no party to their contract. It is bound to afford adequate process for the enforcement of rights ; but it has not tied its own hands as to the modes by which it will administer justice. Those from necessity belong to the supreme power to prescribe ; and their continuance is not the subject of contract between private parties. In truth, it is not at all probable that the parties made their agreement with reference to the possible abolition of distress for rent. The first clause of this special provision is, that the lessor may distrain, sue, re-enter, or resort to any ,other legal remedy, and the second is, that in cases of distress the lessee waives the exemption of certain property from the process, which by law was exempted. This waiver of exemp- tion was undoubtedly the substantial thing which the parties had in view ; but yet perhaps their language cannot be confined to this object, and it may therefore be proper to consider the con- tract as if it had been their clear purpose to preserve their legal remedy, even if the legislature should think fit to abolish it. In that aspect of it the contract was a subject over which they had no control."^ But a law which deprives a party of all legal remedy must necessarily be void. " If the legislature of any State were to undertake to make a law preventing the legal remedy upon a contract lawfully made and binding on the party to it, there is no question that such legislature would, by such act, exceed its legit- imate powers. Such an act must necessarily impair the obligation of the contract within the meaning of the Constitution." ^ This 1 Conkey «. Hart, 14 N. Y. 22, 30 ; Osborn v. Nicholson, 13 Wall. 662 ; U. citing Handy v. Chatfleld, 23 Wend. 85; S. «. Conway, Hempst. 313; Johnson v. Mason v. Haile, 12 Wheat. 370 ; Stock- Bond, Hempst. 533 ; West v. Sansom, 44 ing V. Hunt, 3 Denio, 274 ; and Van Eens- Ga. 295. See Griffin v. Wilcox, 21 Ind. selaer . Bank of South Carolina, 1 S. C. 63. As the States are not suable except at their own option, the laws which they may pass for the purpose they may re- peal at discretion. Railroad Co. v. Ten- nessee, 101 U. S. 337 ; Railroad Co. v. •Alabama, 101 D. S. 832 ; State v. Bank, 3 Bax. 395 ; and this even after suit has been instituted. Home v. State, 84 N. C. 362 ; Railroad Co. v. Tennessee, supra. 1 Rison V. Farr, 24 Ark. 161 ; McFar- land V. Butler, 8 Minn. 116 ; Jackson v. Same, 8 Minn. 117. But there is nothing to preclude the people of a State, in an amendment to their constitution, taking away rights of action, or other rights, so long as they abstain from impairing the obligation of contracts, and from impos- ing punishments. The power to do so has been exercised with a view to the quieting of controversies and the restorer tion of domestic peace after the late civil war. Thus, in Missouri and some other States, all rights of action for anything done by the State or federal military au- thorities during the war were taken away by constitutional provision; and the au- thority to do this was fully supported. Drehman v. Stifel, 41 Mo. 184 ; s. c. in error, 8 Wall. 596. And see Hess v. John- son, 3 W. Va. 645. A remedy may also be denied to a party until he has per- formed his duty to the State in respect to the demand in suit; e. g. paid the tax upon the debt sued for. Walker w.White- head, 43 Ga. 638; Garrett v. Cordell, 43 Ga. 366 ; Welborn v. Akin, 44 Ga. 420. But this is denied as regards contracts entered into before the passage of the law. Walker v. Whitehead, 16 Wall. 314. 2 Oatman v. Bond, 16 Wis. 20. As to control of remedies, see post, p. 442. 8 Louisiana v. New Orleans, 109 U. S. 285; Freeland v. Williams, 131 U. S.406; Peerce v. Kitzmiller, 19 W. Va. 564. In the former case a judgment for injury done by a mob became uncollectible by the diminution by legislation of the taxing power of the city. In the two latter, re- covery for a tort committed as an act of war was forbidden after judgment by constitutional amendment. Both the en- actment and the amendment were upheld. See also. State u. New Orleans, 38 La. Ann. 119, and cases post, p. 443, note 6. ^ Bowdoinham v. Richmond, 6 Me. 112. 352 CONSTITUTIONAL LIMITATIONS. [CH. IX. the general and almost unlimited control which the State retains over its municipalities.^ In any case the lawful repeal of a statute cannot constitutionally be made to destroy contracts which have been entered into under it ; these being legal when made, they remain valid notwithstanding the repeal.^ So where, by its terms, a contract provides for the payment of money by one party to another, and, by the law then in force, property would be liable to be seized, and sold on execution to the highest bidder, to satisfy any judgment recovered on such contract, a subsequent law, forbidding property from being sold on execution for less than two-thirds the valuation made by ap- praisers, pursuant to the directions contained in the law, though professing to act only on the remedy, amounts to a denial or obstruction of the rights accruing by the contract, and is directly obnoxious to the prohibition of the Constitution.^ So a law which takes away from mortgagees the right to possession under their mortgages until after foreclosure, is void, because depriving them of the right to the rents and profits, which was a valuable portion of the right secured by the contract. " By this act the mortgagee is required to incur the additional expense of a foreclosure, before obtaining possession, and is deprived of the right to add to his security, by the perception of the rents and profits of the premises, during the time required to accomplish this and the time of re- demption, and during that time the rents and profits are given to another, who may or may not appropriate them to the payment of the debt, as he chooses, and the mortgagee in the mean time is subjected to the risk, often considerable, of the depreciation in 1 See ante, pp. 229, 230, and cases cited law authorizing property to be turned out in notes. in satisfaction of a contract is void, Abet^ 2 Tuolumne Redemption Co. v. Sedg- orombie v. Baxter, 44 Ga. 36. The " seal- wick, 15 Cal. 515 ; McCauley v. Brooks, ing laws," so called, under which con- 16 Cal. 11 ; Commonwealtli v. New Bed- tracts made while Confederate notes ford Bridge, 2 Gray, 339 ; State v. Fhalen, were the only currency, are allowed to 3 Harr. 441 ; State v. Hawthorn, 9 Mo. be satisfied on payment of a sum equal 389. to what the sum called for by them in 2 McCracken v. Hayward, 2 How. 608 ; Confederate notes was worth when they Willard y. Longstreet, 2 Doug. (Mich.) were made, have been sustained, but this 172 ; Kawley v. Hooker, 21 Ind. 144. So is on the assumption that the contracts a law which, as to existing mortgages are enforced as near as possible accord- forecloseable by sale, prohibits the sale ing to the actual intent. Harmon v. Wal- for less than half the appraised value of lace, 2 S. C. 208 ; Robeson u. Brown, 63 the land, is void for the same reason. N. C. 554 ; Hilliard v. Moore, 65 N. C. Gantly's Lessee v. Ewing, 8 How. 707; 540; Pharis v. Dice, 21 Gratt. 303; Thor- Bronson v. Kinzie, 1 How. 311. See to ington v. Smith, 8 Wall. 1. A statute is like effect, Bobards v. Brown, 40 Ark. bad which permits in such case a recov- 423 ; Collins v. Collins, 79 Ky. 88. So ery of what a jury may think is the fair one which takes away the power of sale, value of the property sold. Effinger v. O'Brien v. Krenz, 36 Minn. 136. And a Kenncy,115 U. S. 566. CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 353 the value of the security." i So a law is void which extends the time for the redemption of lands sold on execution, or for delin- quent taxes, after the sales have been made ; for in such a case the contract with the purchaser, and for which he has paid his money, is, that he shall have title at the time then provided by the law ; and to extend the time for redemption is' to alter the substance of the contract, as much as would be the extension of the time for payment of a promissory uote.^ So a law which shortens the time for redemption from a mortgage, after a fore- closure sale has taken place, is void ; the rights of the party being fixed by the foreclosure and the law then in force, and the mortgagor being entitled, under the law, to possession of the land until the time for redemption expires.^ And where by statute a 1 Mundy v. Monroe, 1 Mich. 68, 76 ; Blackwood o. Vanvleet, 11 Mich. 252. Compare Dikeman v. Dikeman, 11 Paige, 484; James B. StuU, 9 Barb. 482; Cook V. Gray, 2 Houst. 455. In the last case it was Iield that a statute shortening the notice to be given on foreclosure of a mortgage under the power of sale, from twenty -four to twelve weeks, was valid as affecting the remedy only ; and that a stipulation in a mortgage that on default being made in payment the mortgagee might sell " according to law," meant ac- cording to the law as it should be when sale was made. But see Ashuelot B. R. Co. V. Eliot, 52 N. H. 387, and what is said on the general subject in Cochran v. Barcy, 5 Rich. 125. A redemption law cannot take from the mortgagee the right to recover rents from the owner in pos- session after foreclosure sale. Travellers Ins. Co. V. Brouse, 83 Ind. 62. But the debtor's tenant in possession may be made primarily liable to the mortgagee instead of to the debtor. Edwards u. Johnson, 105 Ind. 594. In Berthold v. Fox, 13 Minn. 501, it was decided that in the case of a mortgage given while the law allowed the mortgagee possession during the period allowed for redemption after foreclosure, such law miglit be so changed as to take away this right. But this seems doubtful. In Baldwin v. Flagg, 43 N. J. 495, it was held that where bond and mortgage had been given, it was not competent to provide by subsequent le- gislation that the mortgage should be first foreclosed, and resort to the bond only had in case of deficiency. Nor that the foreclosure sale should be opened if a 23 judgment is had upon the bond. Cod- dington v. Bispham, 36 N. J. Eq. 574. See Morris v. Carter, 46 N..J. L. 260; Toffey V. Atcheson, 42 N. J. Eq. 182. A stipu- lation in a chattel mortgage that the mortgagee may take possession whenever lie deems himself insecure, is liot to be impaired by subsequent legislation for- bidding him to do so without just cause. Boice V. Boice, 27 Minn. 371. Reducing the rate of interest payable on redemp- tion to the foreclosure purchaser violates no contract with the mortgagee. Conn. Mut. Life Ins. Co. v. Cushman, 108 U. S. 51. 32,0 2 Robinson v. Howe,13 Wis.-g*!-; Dike- man V. Dikeman, 11 Paige, 484; Goenen «. Schroeder, 8 Minn. 38^ January v. January, 7 T. B. Monr. 542 ; s. c. 18 Am. Dec. 211 ; Greenfield v. Dorris, 1 Sneed, 550. But see Stone v. Basset, 4 Minn. 298 ; Heyward v. Judd, 4 Minn. 483 ; Freeborn v. Pettibone, 5 Minn. 277; Qavis V. Rupe, 114 Ind. 588. A pro- vision that the right to redeem from a pre-existing mortgage shall not expire if a creditor of the mortgagor comes into equity and gets a decree to enable him to fulfil the conditions of the mortgage and hold the property, is void as against the mortgagee. Phinney v. Phinney, 81 Me. 450. So, on the other hand, a law is void which takes away an existing right of a creditor of the mortgagor to redeem from the sale. O'Brien v. Krenz, 36 Minn. 136. a Cargill v. Power, 1 Mich. 369. The contrary ruling was made in Butler ?). Palmer, 1 Hill, 324, by analogy to the Statute of Limitations. The statute, it 354 CONSTITUTIONAL LIMITATIONS. [CH. IX. purchaser of lands from the State had the right, upon the for- feiture of his- contract of purchase for the non-payment of the sum due upon it, to revive it at any time before a public sale of the lands, by the payment of all sums due upon the contract, with a penalty of five per cent, it was held that this right could not be taken away by a subsequent change in tlie law which subjected the forfeited lands to private entry and sale.^ And a statute which authorizes stay of execution, for an unreasonable or indefi- nite period, on judgments rendered on pre-existing contracts, is void, as postponing payment, and taking away all remedy during the continuance of the stay.^ And a law is void on this ground was said, was no more in effect than say- ing : " Unless you redeem witliin the shorter time prescribed, you shall have no action for a recovery of the land, nor shall your defence against an action be al- lowed, provided you get possession." And in Robinson v. Howe, 13 Wis. 341, 346, the court, speaking of a similar right in a party, say : " So far as his right of re- demption was concerned, it was not de- rived from any contract, but was given by the law only; and the time within which he might exercise it might be shortened by the legislature, provided a, reasonable time was left in which to ex- ercise it, without impairing the obligation of any contract." And see Smith w. Pack- ard, 12 Wis. 371, to the same effect. An increase of the rate of interest to be paid on redemption of a preexisting mortgage is bad. Hillebert v. Porter, 28 Minn. 496. 1 State V. Commissioners of School and TToiversity Lands, 4 Wis. 414. A right to reimbursement if a tax purchase is set aside cannot by subsequent legislation be taken away from the purchaser of a tax title. State v. Foley, 80 Minn. 350. 2 Ghadwiok v. Moore, 8 W. & S. 49; Bunn V. Gorgas, 41 Pa. St. 441 ; Towns- end V. Townsend, Peck, 1 ; s. o. 14 Am. Dec. 722; Stevens v. Andrews, 31 Mo. 205 ; Hasbrottck v. Shipman, 16 Wis. 296 ; Jacobs V. Smallwood, 63 N. C. 112 ; Web- ster V. Rose, 6 Heisk. 93; Edwards v. Kearzey, 96 tJ. S. 595. In Breitenbach v. Bush, 44 Pa. St. 318, and Coxe v. Mar- tin, 44 Pa. St. 322, it was held that an act staying all civil process against volun- teers who had enlisted in the national ser- vice for three years or during the war was valid, — " during the war " being construed to mean unless the war should sooner terminate. See also State v. Ca- rew, 13 Rich. 498. A general law that all suits pending should be continued until peace between the Confederate States and the United States, was held void in Burt V. Williams, 24 Ark. 94. See also Taylor V. Stearns, 18 Gratt. 244; Hudspeth v. Davis, 41 Ala. 389; Aycoek v. Martin, 37 Ga. 124 ; Coffman w. Bank of Kentucky, 40 Miss. 29; Jacobs v. Smallwood, 63 N. C. 112; Cutts V. Hardee. 38 Ga. 350; Se- questration Cases, 30 Tex. 688. A law permitting a year's stay upon judgments where security is given was held valid in Farnsworth v. Vance, 2 Cold. 108; but this decision was overruled in Webster v. Rose, 6 Heisk. 93 ; s. o. 19 Am. Rep. 688. A statute was held void which stayed all proceedings against volunteers who had enlisted " during the war," ihis period being indefinite. Clark v. Martin, 3 Grant's Cas. 393. In Johnson v. Higgins, 3 Met. (Ky.) 566, it was held that the act of the Kentucky legislature of May 24, 1861, which forbade the rendition in all the courts of the State, of any judgment from date till January 1st, 1862, was valid. It related, it was said, not to the remedy for enforcing a contract, but to the courts which administer the remedy ; and those courts, in a legal sense, constitute no part of the remedy. A law exempting sol- diers from civil process until thirty days after their discharge from military service was held valid as to all contracts subse- quently entered -into, in Bruns v. Craw- ford, 34 Mo. 330. And see McCorraick V. Rusch, 15 Iowa, 127. A statute sus- pending limitation laws during the exist- ence of civil war, and until the State was restored to her proper relations to the Union, was sustained in Bender v- Craw- ford, 33 Tex. 745. Compare Bradford v. Shine, 13 Fla. 393. CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 355 which declares a forfeiture of the charter of a corporation for acts or omissioas which constituted no cause of forfeituse at the time they oecurred.i And it has been held that where a statute au- thorized a municipal corporation to issue bonds, and to exercise the power of local taxation in order to pay them, and persons bought and paid value for bonds issued accordingly, this power of taxation is part of the contract, and cannot be withdrawn until the bonds are satisfied ; that an attempt to repeal or restrict it by statute is void ; and that unless the corporation imposes and collects the tax in all respects as if the subsequent statute had not been passed, it will be compelled to do so by mandamus?' And it has also been held that a statute repealing a former statute, which made the stock of stockholders in a corporation liable for its debts, was, in respect to creditors existing at the time of the repeal, a law impairing the obligation of contracts.^ In each of these cases it is evident that substantial rights were affected ; and so far as the laws which were held void operated upon the remedy, they either had an effect equivalent to import- ing some new stipulation into the contract, or they failed to leave the party a substantial remedy such as was assured to him by the law in force when the contract was made. In Pennsylvania it has been held that a statute authorizing a stay of execution on contracts in which the debtor had waived the right was uncon- stitutional ; * but it seems to us that an agreement to waive a legal privilege which the law gives as a matter of State policy cannot be binding upon a party, unless the law itself provides for the waiver.* Where, however, by the operation of existing laws, a contract cannot be enforced without some new action of a party to fix his liability, it is as competent to prescribe by statute the requisites to the legal validity of such action as it would be in any case to prescribe the legal requisites of a contract to be thereafter made. 1 People V. Jackson & Michigan nor v. Memphis, 6 Lea, 730. See also Plank Road Co., 9 Mich. 285, per Chris- Sontter v. Madison, 15 Wis. 30; Smith v. tiancy, J. ; State v. Tombeckbee Bank, 2 Appleton, 19 Wis. 468 ; Bahwaj v. Mun- Stew. 30. See Ireland v. Turnpike Co., day, 44 N. J. L. 395; Seibert v. Lewig, 19 Ohio St. 369. 122 U. S. 284. For a similar principle 2 Von Hoffman v. Quincy, 4 WalL 535 ; see Sala v. New Orleans, 2 Woods, 188. Murray ». Charleston, 96 U. S. 432 ; Lou- » Hawthorne v. Calef, 2 Wall. 10. mand v. New Orleans, 102 V. S. 208 ; ♦ BiUmeyer v. Evans, 40 Pa. St. 824; Wolff V. New Orleans, 108 U. S. 358; Lewis v. Lewis, 47 Pa. St. 127. See Nelson v. St. Martin's Parish, 111 U. S. Laucks' Appeal, 24 Pa. St. 426; Case v. 716 ; Beckwith v. Racine, 7 Hiss. 142. Duntnore, 23 Pa. St. 93 ; Bowman v. Smi- The liability cannot be escaped by turn- ley, 81 Pa. St. 225. ing a city into a mere taxing district. ^ See Conkey v. Hart, 14 N. Y. 22; Mobile V. Watson, 116 U. S. 289; O'Con- Handy v. Chatfield, 23 Wend. 35. 356 CONSTITUTIONAL LIMITATIONS. [CH. IX. Thus, though a verbal promise is sufficient to revive a debt barred by the Statute of Limitations or by bankruptcy, yet this rule may be changed by a statute making all such future promises void un- less in writing.! It is also equally true that where a legal im- pediment exists to the enforcement of a contract which parties have entered into, the constitutional provision in question will not preclude the legislature from removing such impediment and validating the contract. A statute of that description would not impair the obligation of contracts, but would perfect and enforce it.2 And for similar reasons the obligation of contracts is not impaired by continuing the charter of a corporation for a certain period, in order to the proper closing of its business.^ State Insolvent Laws. In this connection some notice may seem requisite of the power of the States to pass insolvent laws, and the classes of contracts to which they may be made to apply. As this whole subject has been gone over very often and very fully by the Supreme Court of the United States, and the impor- tant questions seem at last to be finally set at rest, and moreover as it is comparatively unimportant whenever a federal bankrupt law exists, we content ourselves with giving what we understand to be the conclusions of the court. 1. The several States have power to legislate on the subject of bankrupt and insolvent laws, subject, however, to the authority conferred upon Congress by the Constitution to adopt a uniform system of bankruptcy, which authority, when exercised, is para- mount, and State enactments in conflict with those of Congress upon the subject must give way.* 2. Such State laws, however, discharging the person or the property of the debtor, and thereby terminating the legal obliga- tion of the debts, cannot constitutionally be made to apply to contracts entered into before they were passed, but they may be made applicable to such future contracts as can be considered as having been made in reference to them.^ 3. Contracts made within a State where an insolvent law exists, between citizens of that State, are to be considered as made in reference to the law, and are subject to its provisions. But the law cannot apply to a contract made in one State be- 1 Joy V. Thompson, 1 Doug. (Mich.) ' Foster w. Essex Bank, 16 Mass. 245. 373 ; Kingley v. Cousins, 47 Me. 01. * Sturges v. Crowninshield, 4 Wheat. 2 As where the defence of usury to a 122 ; Farmers' & Mechanics' Bank v. contract is taken away by statute. Welsh Smith, 6 Wheat. 131 ; Ogden v. Saunders, V. Wadsworth, 30 Conn. 149; Curtis v. 12 Wheat. 218; Baldwin u. Hale, 1 Wall. Leavitt, 15 N. Y. 9. And see Wood v. 223. Kennedy, 19 Ind. 68, and the cases cited, * Ogden v. Saunders, 12 Wheat. 213. jpott, pp. 461, 462. CH. IX.] FEDERAL PROTECTION TO PERSON, ETC. 357 tween a citizen thereof and a citizen of anothfer State,i nor to contracts not made within the State, even though made between citizens of the same State,^ except, perhaps, where they are citi- zens of the State passing the law.^ And where the contract is made between a citizen of one State and a citizen of another, the circumstance that the contract is made payable in the State where the insolvent law exists will not render such contract sub- ject to be discharged under the law.* If, however, the creditor in any of these cases makes himself a party to proceedings under the insolvent law, he will be bound thereby like any other party to judicial proceedings, and is not to be heard afterwards to object that his debt was protected by the Constitution from the reach of the law.^ The New Amendments to the Federal Constitution. New provi- sions for personal liberty, and for the protection of the right to life, liberty, and property, are made by the thirteenth and four- teenth amendments to the Constitution of the United States ; and these will be referred to in the two succeeding phapters.^ The most important clause in the fourteenth amendment is that part of section one which declares that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they re- side.^ This provision very properly puts an end to any question of the title of the freedmen and others of their race to the rights of citizenship; but it may be doubtful whether the further pro- visions of the same section surround the citizen with any pro- tections additional to those before possessed under the State constitutions; though, as a principle of State constitutional law has now been made a part of the Constitution of the United States, the effect will be to make the Supreme Court of the United States the final arbiter of cases in which a violation of this prin- 1 Ogden V. Saunders,, 12. Wheat. 213 ; » See ante, pp. 14-16 ; post, pp. 363, 489. Springer i;. Foster, 2 Story, 383 ; Boyle "^ The complete text of this section is V. Zacharie, 6 Pet. 348 ; Woodhull v. Wag- as follows : " Section 1. All persons born ner, Baldw. 296 : Suydam v. Broadnax, or naturalized in the United States, and 14 Pet. 67 ; Cook v. Hoffat, 5 How. 295 ; subject to the jurisdiction thereof, are Baldwin v. Hale, 1 Wall. 223. citizens of the United States, and of the 2 McMillan v. McNeill, 4 Wheat. 209. State wherein they reside. No State shall 3 Mafsh V. Putnam, 3 Gray, 551. make or enforce any law which shall * Baldwin v. Hale, 1 Wall. 223; Bald- abridge the privileges and immunities of win V. Bank of Newbury, 1 Wall. 234 ; citizens of the United States ; nor sliall Gilman «. Lockwood, 4 Wall. 409. See any State deprive any person of life, lib- also Norris v. Atkinson, 64 N. H. 87. erty, or property without due process of 8 Clay V. Smith, 3 Pet. 411 ; Baldwin law, nor deny to any person within its V. Hale, 1 Wall. 223; Gilman v. Lock- jurisdiction the equal protection of the wood, 4 Wall. 409; Perley ». Mason, 64 laws." N. H. 6. 358 CONSTITUTIONAL LIMITATIONS. [CH. IX. ciple by State laws is complained of, inasmuch as the decisions of the State courts upon laws which are supposed to violate it will be subject to review in that court on appeal,^ 1 See ante, pp. 18-23. Notwithstand- ing this section, the protection of all citi- zens in their privileges and immunities, and in their right to an impartial adminis- tration of the laws, is just as much the business of the individual States as it was before. This amendment of the Consti- tution does not concentrate power in the general government for any pui-pose of police government within the States ; its object is to preclude legislation by any State which shall " abridge the privileges or immunities of citizens of the United States," or '^deprive any person of life, liberty, or property without due process of law'," or " deny to any person within its jurisdiction the equal protection of the laws;'* and Congress is empowered to pass all laws neCes^ry to render such unconstitutional State, legislation ineffec- tual. This amendment has received a very full examination at the hands of the Supreme Court of the United States in the Slaughter-House Case, 16 Wall. 38, and in United States a. Cruikshank, 92 U. S. 542, with the conclusion above stated. See Story on Const. (4th ed.) App. to Vol. 11 CH. X.J CONSTITUTIONAL PKOTECTIONS, ETC. 359 CHAPTER X., OP THE CONSTITUTIONAL PEOTECTIONS TO PERSONAL LIBERTY. Although the people from whom we derive our laws now pos- sess a larger share of civil and political liberty than any other in Europe, there was a period in their history when a consider- able proportion were in a condition of servitude. Of the servile classes one portion were villeins regardant, or serfs attached to the soil, and transferable with it, but not otherwise,^ while the other portion were villeins in gross, whose condition resembled that of the slaves known to modern law in America.^ How these people became reduced to this unhappy condition, it may not be possible to determine at this distance of time with entire accu- racy ; ^ but in regard to the first class, we may suppose that when a conqueror seized the territory upon which he found them living, he seized also the people as a part of the lawful prize of war, granting them life on condition of their cultivating the soil for his use ; and that the second were often persons whose lives had been spared on the field of battle, and whose ownership, in accord- ance with the custom of barbarous times, would pertain to the persons of their captors. Many other causes also contributed to reduce persons to this condition.* At the beginning of the reign of John it has been estimated that one-half of the Anglo-Saxons were in a condition of servitude, and if we go back to the time of > Litt. § 181 ; 2 Bl. Com. 92. " They tude, used and employed in the most ser- originally held lands of their lords on con- vile works ; and belonging, they and their dition of agricultural service, which in a children and effects, to the lord of the soil, certain sense was servile, but in reality like the rest of the stock or cattle upon was not so, as the actual work was done it.' " Reeves, History of English Law, by the theows, or slaves. . . . They did Pt. I. c. 1. not pay rent, and were not removable at ^ As to slavery among the Anglo-Sax- pleasure ; they went with the land^ and ons, see Stubbs, Const. Hist, of England, rendered services, uncertain in their na- ch. V. ture, and therefore opposed to rent. They * For a view of the condition of the were the originals of copyholders." Note servile classes, see Wright, Domestic Man- to Reeves, History of English Law, Pt. I. ners and Sentiments, 101, 102 ; Crabbe, c. 1. History of English Law (ed. of 1829), 2 Litt. §181; 2 Bl. Com. 92. "These 8, 78, 365; Hallam, Middle Ages, Pt. are the persons who are described by Sir II. c. 2 ; Vaughan, Revolutions in Eng- William Temple as ' a sort of people who lish History, Book 2, q. 8 ; Broom, Const, were in a condition of downright servi- Law, 74 el seq. 360 CONSTITUTIONAL LIMITATIONS. [OH. X. the Conquest, we find a still larger proportion of the people held as the property of their lords, and incapable of acquiring and holding any property as their own.^ Their treatment was such as might have been expected from masters trained to war and violence, accustomed to think lightly of human life aiid human suffering, and who knew little of and cared less for any doctrine of human rights which embraced within its scope others besides th'e governing classes. It would be idle to attempt to follow the imperceptible steps by which involuntary servitude at length came to an end in England. It was never abolished by statute,^ and the time when slavery ceased altogether cannot be accurately determined.* The causes w:ere at work silently for centuries ; the historian did not at the time note them ; the statesman did not observe them ; they were not the subject of agitation or controversy ; but the time arrived when the philanthropist could examine the laws and institutions of his country, and declare that slavery had ceased to be recog- nized, though at what precise point in legal history the condition became unlawful he might not with certainty specify. Among the causes of its abrogation he might be able to enumerate : 1. That the slaves were of the same race with their masters. There was therefore not only an absence of that antipathy which is often found existing when the ruling and the ruled are of differ- ent races, and especially of different color, but instead thereof an active sympathy might often be supposed to exist, which would lead to frequent emancipations. 2. The common law presumed every man to be free until proved to be otherwise ; and this pre- 1 Hume, History of England, Vol. I. more of tliis kind of servitude. And see App. 1. Crabbe, History of English Law (ed. of 2 Harrington on the Statutes (.3d ed.), 1829), 574. This author says that ril- 272. leinage had disappeared by the time of 3 Mr. Hargrave says, at the commence- Charles IL Hurd says in 1661. Law of ment of the seventeenth century. 20 State - Freedom and Bondage, Vol. L p. 136. Trials, 40 ; May, Const. Hist. c. 11. And And see 2 Bl. Com. 96. Lord Campbell's Mr. Barrington (on the Statutes 3d ed. p. Lives of the Chief Justices, c. 5. Mac- 278) cites from Rymer a commission from aulay says there were traces of slavery Queen Elizabeth in the year 1574, directed under tlie Stuarts. History of England, < to Lord Burghley and Sir Walter Mild- c. 1. Hume (History of England, c. 23) may, for inquiring into the lands, tene- thinks there was no law recognizing it ments, and other goods of all her bondmen after the time of Henry VII., and that it and bondwomen in the counties of Corn- had ceased before the death of Elizabeth, wall, Devonshire, Somerset, and Glouces- !Froude (History of England, c. 1) says in ter, such as were by blood in a slavish con- the reign of Henry VIII. it had practically dition, by being born in any of her manors, ceased. Mr. Christian says the last claim and to compound with any or all of such of villeinage which we find recorded in bondmen or bondwomen for their manu- our courts was in 15th James I. Noy, 27 ; mission and freedom. And this commis- 11 State Trials, 342. Hote to Blackstone, sioD, he says, in connection with other Book 2, p. 96. circumstances, explains why we hear no CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 361 sumption, when the slave was of the same race as his master, and had no natural badge of servitude, must often have rendered it extremely difficult to recover the fugitive who denied his thral- dom . 3. A residence for a year and a day in a corporate town rendered the villein legally free ; ^ so that to him the towns con- stituted cities of refuge. 4. The lord treating him as a freeman — as by receiving homage from him as tenant, or entering into a contract with him under seal — thereby emancipated him, by recognizing in him a capacity to perform those acts which only a freeman could perform. 5. Even the lax morals of the times were favorable to liberty, since the condition of the child followed that of the father ;2 and in law the illegitimate child was nullius filius, — had no father. And, 6. The influence of the priesthood was generally against slavery, and must often have shielded the fugitive and influenced emancipations by appeals to the con- science, especially when the master was near the close of life and the conscience naturally most sensitive.^ And with all these in- fluences there should be noted the further circumstance, that a class of freemen was always near to the slaves in condition and suffering, with whom they were in association, and between whom and themselves there were frequent intermarriages,* and that from these to the highest order in the State there were successive grades ; the children of the highest gradually finding their way into those below them, and ways being open by which the chil- dren of the lowest might advance themselves, by intelligence, energy, or thrift, through the successive grades above them, until the descendants of dulses and earls were found cultivating the 1 Crabbe, History of English Law (ed. " Wliereas God created all men free, but of 1829), 79. But this was only as to afterwards the laws and customs of na- third persons. The claim of the lord tions subjected some under the yoke of" might be made within three years. Ibid, servitude, we think it pious and meritori- And see Mackintosh, History of England, ms.with God to manumit Henry Knight, a c. 4. tailor, and John Herle, a husbandman, our 2 Barrington on Statutes (3d ed.), 276, natives, as being born within the manor note ; 2 Bl. Cora. 93. But in the very of Stoke Clymercysland, in our county of quaint account of "Villeinage and Nief- Cornwall, together with all their issue ty," in Mirror of Justices, § 28, it is said, born or to be born, and all their goods, among other things, that " those are vil- lands, and chattels acquired, so as the said leins who are begotten of a freeman and persons and their issue shall from hence- a nief, and bom out of matrimony." The forth by us be free and of free condition." ancient rule appears to have been that Barrington on Statutes (3d ed.), 276. See the condition of the child followed that of Mackintosh, History of England, c. 4. the mother ; but this was changed in the Compare this with a deed of manumission time of Henry I. Crabbe, History of in Massachusetts, to be found in Sumner's English Law (ed. of 1829), 78 ; Hallam, Speeches, II. 289 ; Memoir of Chief Jus- Middle Ages, Pt. II. c. 2. tice Parsons, by his son, 176, note. " In 1514, Henry VIII. manumitted * Wright, Domestic Manners and Sen- two of his villeins in the following words : timents, 112. 362 CONSTITUTIONAL LIMITATIONS. [CH. X. soil, and the man of obscure descent winning a place among the aristocracy of the realm, through his successful exertions at the bar or his services to the State. Inevitably these influences must at length overthrow the slavery of white men which existed in England,'^ and no other ever became established within the realm. Slavery was permitted, and indeed fostered, in the colonies ; in part because a profit was made of the trade, and in part also be- cause it was supposed that the peculiar products of some of them could not be profitably cultivated with free labor ; ^ and at times masters brought their slaves with them to England and removed them again without question, until in Sommersett's Case, in 1771, it was ruled by Lord Mansfield that slavery was repugnant to the common law, and to bring a slave into England was to emanci- pate him.^ The same opinion had been previously expressed by Lord Solt but without authoritative decision.* In Scotland a condition of servitude continued to a later period. The holding of negroes in slavery was indeed held to be illegal soon after the Sommersett Case ; but the salters and colliers did not acquire their freedom until 1799, nor without an act of Par- 1 Maeaulay (History of England, c. 1) says the chief instrument of emancipa- tion was the Christian religion. Mack- intosh (History of England, c. 4), also, attributes to tlie priesthood great influ- ence in this reform, not only by tlieir di- rect appeals to the conscience, but by the judges, who were ecclesiastics, multiply- ing presumptions and rules of evidence consonant to the equal and humane spirit which breathes throughout the morality of the Gospel. Hume (History of Eng- land, c. 2.3) seems to think emancipation was brought about by selfish considera- tions on the part of the barons, and from a conviction that the returns from their lands would be increased by changing vil- leinage into socage tenures. ^ Robertson, America, Book 9 ; Ban- croft, United States, Vol. I. c. 5. 8 Loffit, 18; 20 Howell State Trials, 1 ; Life of Granville Sharp, by Hoare, o. 4 ; Hurd, Law of Freedom and Bondage, Vol. L p. 189. The judgment of Lord Mansfield is said to have been delivered with evident reluctance. 20 State Trials, 79 ; per Lord Stowell, 2 Hagg. Adm. 105, 110; Broom, Const. Law, 106. Of the practice prior to the decision Lord Stow- ell said : " The personal trafiSc in slaves resident in England had been as public and as authorized in London as in any of our West India Islands. They were sold on the Exchange, and other places of public resort, by parties themselves resi- dent in London, and with as little reserve as they would have been in any of our West India possessions. Such a state of things continued without impeachment from a very early period up to nearly the end of the last century." The Slave Grace, 2 Hagg. Adm. 105. In this case it was decided that if a slave, carried by his master into a free country, voluntarily returned with him to a country where slavery was allowed by the local law, the status of slave would still attach to him, and the master's right to his service be resumed. Mr. Broom collects the author- ities on this subject in general, in the notes to Sommersett's Case, Const. Law, 105. * " As soon as a slave comes into Eng- land, he becomes free ; one may be a villein in England, but not a slave." Holt, Ch. J., in Smith v. Brown, 2 Salk, 666. See also Smith v. Gould, Ld. Raym. 1274 ; 8. c. Salk. 666. There is a learned note in Quincy's Rep. 94, collecting the English authorities on the subject of slavery. CH. X.] CONSTITUTIONAL PEOTECTIONS, ETC. 363 liament.1 A previous statute for their enfranchisement through judicial proceedings had proved ineffectual.^ The history of slavery in this country pertains rather to gen- eral history than to a work upon State constitutional law. Throughout the land involuntary servitude is abolished by con- stitutional amendment, except as it may be imposed in the pun- ishment of crime.3 Nor do we suppose the exception will permit the convict to be subjected to other servitude than such as is under the control and direction of the public authorities, in the manner heretofore customary. The laws of the several States allow the letting of the services of the convicts, either singly or in numbers, to contractors who are to employ them in mechanical trades in or near the prison, and under the surveillance of its officers;, but it might well be doubted if a regulation which should suffer the convict to be placed upon the auction block and sold to the highest bidder, either for life or for a term of years, would be in harmony with the constitutional prohibition. It is certain that it would be open to very grave abuses, and it is so inconsistent with the general sentiment in countries where slavery does not exist, that it may well be believed not to have been within the understanding of the people in incorporating the exception with the prohibitory amendments* The common law of England permits the impressment of sea- faring men to man the royal navy ; ^ but this species of servitude 1 39 Geo. III. c. 56. over twenty-one years of age cannot bind * May's Const. Hist. c. 11. liimself as apprentice. Clark's Case, 1 8 Amendments to Const, of U. S. art. Blaekf. 122 ; s. c. 12 Am. Dec. 213. 13. See Story on the Constitution (4th * The State has no power to imprison ed.), c. 46, for the history of this article, a child in a house of correction who has and the decisions bearing upon it. Tlie committed no crime, on a mere allegation Maryland act for the apprenticing of col- that he is " destitute of proper parental ored children, which made important and care, and is growing up in mendicancy, invidious distinctions between them and ignorance, idleness, and vice." People o. white children, and gave the master prop- Turner, 55 111. 280 ; s. c. 8 Am. Kep. 645. erty rights in their services not given in But a female child who begs in public or other cases, was held void under this arti- has no proper parental care, may be con- cle. Matter of Turner, 1 Abb. U. S. 84. fined in an industrial school. County of This thirteenth amendment conferred no McLean v. Humphrey, 104 111. 378 ; cit- political rights, and left the negro under ing Milwaukee Industrial School v. Su^ all his political disabilities. Marshall v. pervisors, 40 Wis. 328 ; Roth ». House of Donovon, 10 Bush, 681. See also United Kefuge, 31 Md. 329. See, further, that States V. Cruikshank, 94 U. S. 542. Core- under proper safeguards vagrant children tracts for personal services cannot, as a may be so committed. House of Refuge general rule, be enforced, and applica- v. Ryan, 37 Ohio St. 197 ; Prescott v. tion to be discharged firom service under State, 19 Ohio St. 184 ; s. c. 2 Am. Rep. them on habeas corpus is evidence that 388 ; Farnham v. Pierce, 141 Mass. 203 ; the service is involuntary. Cases of ap- People v. N. Y. Catholic Protectory, 101 prenticeship and cases of military and N. Y. 195. naval service are exceptional. A person ' Broadfoot's Case, 18 State Trials, 364 CONSTITUTIONAL LIMITATIONS. [CH. X. was never recognized in the law of Amefica.^ The citizen may doubtless be compelled to serve his country in her wars ; but the common law as adopted by us has never allowed arbitrary discriminations for this purpose between persons of different avocations. Unreasonable Searches and Seizures. Near in importance to exemption from any arbitrary control of the person is that maxim of the common law which secures to the citizen immunity in his home against the prying eyes of the gov- ernment, and protection in person, property, and papers against even the process of the law, except in a few specified cases. The maxim that " every man's house is his castle," ^ is made a part of our constitutional law in the clauses prohibiting unreasonable searches and seizures, and has always been looked upon as of high value to the citizen. If in English history we inquire into the original occasion for these constitutional provisions, we shall probably find it in the abuse of executive authority, and in the unwarrantable intrusion of executive agents into the houses and among the private pa- pers of individuals, in order to obtain evidence of political offen- ces either committed or designed. The final overthrow of this practice is so clearly and succinctly stated in a recent work on the constitutional history of England, that we cannot refrain from copying the account in the note below.* 1323 ; Fost. Cr. Law, 178 ; Hex v. Tubbs, see Lieber on Civil Liberty and Self-Gov- Cowp. 612 ; Ex parte Fox, 5 State Trials, ernment, c. 6. 276; 1 Bl. Com. 419; Broom, Const. ' "Among the remnants of a jurispru- Law, 116. dence which had favored prerogative at 1 There were cases of impressment in the expense of liberty was that of the ar- America before the Revolution, but they rest of persons under general warrants, were never peaceably acquiesced in by without previous evidence of their guilt the people. See Life and Times of War- or identification of their persons. This Ten, 56. practice survived the Kevolution, and was ^Broom's Maxims, 321; Ilsley v. continued without question, on the ground Nichols, 12 Pick. 270 ; Swain v. Miz- of usage, until the reign of George III., ner, 8 Gray, 182 ; People v. Hubbard, 24 when it received its death-blow from the Wend. 369 ; 8. o. 36 Am. Dec. 628 ; Curtis boldness of Wilkes and the wisdom of V. Hubbard, i Hill, 437 ; Bailey v. Wright, Lord Camden. This question was brought 89 Mich. 96. The eloquent passage in toanissueby No. 45 of the 'North Briton,' Chatham's speech on General Warrants already so often mentioned. There was a is familiar : " The poorest man may, in libel, but who was the libeller ■? Ministers his cottage, bid defiance to all the forces knew not, nor waited to inquire, after the of the Crown. It may be frail ; its roof accustomed forms of law ; but forthwith may shake ; the wind may blow through Lord Halifax, one of the secretaries of it; the storm may enter; the rain may state, issued a warrant, directing four mea- enter; but the King of England may not sengers, taking with them a constable, to enter ; all his force dares not cross the search for the authors, printers, and pub- threshold of the ruined tenement." And Ushers ; and to apprehend and seize' them. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 365 The history of this controversy should be read in connection with that in America immediately previous to the American Rev- together with their papers, and bring them in safe custody before him. No one liav- ing been charged or even suspected, — no evidence of crime having been of- fered, — no one was named in this dread instrument. The offence only was pointed at, not the offender. The magistrate who should have sought proofs of crime de- puted this office to his messengers. Armed with their roving commission, they set forth in quest of unknown offenders ; and, unable to take evidence, listened to ru- mors, idle tales, and curious guesses. They held in their hands the liberty of every man whom they were pleased to suspect. Nor were they triflers in their work. In three days they arrested no less than forty-nine persons on suspicion, — many as innocent as Lord Halifax him- self. Among the number was Dryden Leach, a printer, whom they took from his bed at night. They seized his papers, and even apprehended his journeymen and servants. He had printed one num- ber of the ' North Briton,' and was then reprinting some other numbers ; but as he happened not to have printed No. 45, he was released without being brought be- fore Lord Halifax. They succeeded, how- ever, in arresting Kearsley, the publisher, and Balfe, the printer, of the obnoxious number, with all their workmen. From them it was discovered tliat Wilkes was the culprit of whom they were in search j but the evidence was not on oath ; and the messengers received verbal directions to apprehend Wilkes under the general warrant. Wilkes, far keener than the crown lawyers, not seeing his own name there, declared it 'a ridiculous warrant against the whole English nation,' and re- fused to obey it. But after being in cus- tody of the messengers for some hours, in his own house, he was taken away in a chair, to appear before the secretaries of state. No sooner had he been removed than the messengers, returning to his house, proceeded to ransack his drawers, and carried off all his private papers, in- cluding even his will and his pocket-book. When brought into the presence of Lord Halifax and Lord Egremont, questions were put to Wilkes which he refused to answer; whereupon lie was committed close prisoner to the Tower, denied the use of pen and paper, and interdicted from receiving the visits of his friends, or even of his professional advisers. From this imprisonment, however, he was shortly released on a writ of habeas corpus, by reason of his privilege as a member of the House of Commons. " Wilkes and the printers, supported by Lord Temple's liberality, soon ques- tioned the legality of the general war- rant. First, several journeymen printers brought action against the messengers. On the first trial. Lord Chief Justice Prait — not allowing bad precedents to set aside the sound principles of English law — held that the general warrant was il- legal ; that it was illegally executed ; and that the messengers were not indemnified by statute. Tlie journeymen recovered three hundred pounds damages ; and the other plaintiffs also obtained verdicts. In all these cases, however, bills of excep- tions were tendered and allowed. Mr. Wilkes Iiimself brought an action against Mr. Wood, under-secretary of state, who had personally superintended the execu- tion of the warrant. At this trial it was proved that Mr. Wood and the messen- gers, after Wilkes's removal in custody, ■ had taken entire possession of his liouse, refusing admission to his friends ; had feent for a blacksmith, who opened the drawers of his bureau ; and having taken out the papers, had carried them away in a sack, without taking any list or inven- tory. All his private manuscripts were seized, and his pocket-book filled up the mouth of the sack. Lord Halifax was examined, and admitted that the warrant had been made out three days before he had received evidence that Wilkes was the author of the ' North Briton.' Lord Chief Justice Pratt thus spoke of the war- rant: 'The defendant claimed a right, under precedents,' to force persons' houses, break open escritoires, and seize their pa- pers upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders' names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their sus- picions may chance to fall. If such a 366 CONSTITUTIONAL LIMITATIONS. [CH. X. olution, in regard to writs of assistance issued by the courts to the revenue officers, empowering them, in their discretion, to power is truly invested in a secretary of state, and he can delegate this power, it certainly may affect the person and prop- erty of every man in this kingdom, »nd is totally subversive of tlie liberty of the subject.' The jury found a verdict for the plaintiff, with one thousand pounds damages. " Four days after Wilkes had obtained his verdict against Mr. Wood, Dryden Leach, the printer, gained another ver- dict, with four hundred pounds damages, against the messengers. A bill of excep- tions, however, was tendered and received in this as in other cases, and came on for hearing before the Court of King's Bench in 1765. After much argument and the citing of precedents showing the practice of the secretary of state's office ever since the Revolution, Lord J/ans^eW pro- nounced the warrant illegal, saying : ' It is not fit that the judging of the informa- tion should be left to the discretion of the officer. The magistrate should judge, and give certain directions to the officer.' The other three judges agreed that the warrant was illegal and bad, 'believing that no degree of antiquity can give sanc- tion to an usage bad in itself.' The judgment was therefore affirmed. " Wilkes had also brought actions for false imprisonment against both the sec- retaries of state. Lord Egremont's death put an end to the action against him ; and Lord Halifax, by pleading privilege, and interposing other delays unworthy of his position and cliaracter, contrived to put off his appearance until after Wilkes had been outlawed, when he appeared and pleaded the outlawry. But at length, in 1769, no further postponement could be contrived ; the action was tried, and Wilkes obtained no less tlian four thou- sand pounds damages. Not only in this action, but throughout the proceedings, in which persons aggrieved by the general warrant had sought redress, the govern- ment offered an obstinate and vexations resistance. The defendants were harassed by every obstacle which the law permit- ted, and subjected to ruinous costs. The expenses which government itself incurred in these various actions were said to have amounted toone hundred thousand pounds. " The liberty of the subject was further assured at this period by another remark^' able judgment of Lord Camden. In Nof vember, 1762, the Earl of Halifax, as secretary of state, had issued a warrant directing certain messengers, taking a constable to their assistance, to search for John Entinck, clerk, the author or one concerned in the writing of several num- bers of the 'Monitor, or British Free- holder,' and to seize him, together with his books and papers, and bring him in safe custody before the secretary of state. In execution of this warrant, the mes- sengers apprehended Mr. Entinck in his house, and seized the books and papers in his bureau, writing-desk, and drawers. This case differed from that of Wilkes, as the warrant specified the name of the person against whom it ,was directed. In respect of the person, it was not a general warrant, but as regards the papers, it was a general search-warrant, — not speci- fying any particular papers to be seized, but giving authority to the messengers to take all his books and papers according to their discretion. " Mr. Entinck brought an action of trespass against the messengers for the seizure of his papers, upon which a jury found a special verdict, with three hun. dred pounds damages. This special ver- dict was twice learnedly argued before the Court of Common Pleas, where, at length, in 1765, Lord Camden pronounced an elaborate judgment. He even doubted the right Bf the secretary of state to com- mit persons at all, except for high treason ; but in deference to prior decisions, the court felt bound to acknowledge the right. The main question, however, was the legality of a search-warrant for papers. ' If this point should be determined in favor of the jurisdiction,' said Lord Cam- den, ' the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection of a messenger, whenever the secretary of state shall see fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel.' ' This power, so assumed by the secretary of state, is an execution upon all the party's papers in the first instance. His house is CH. X.J CONSTITUTIONAL rEOTECTIONS. ETC. 367 search suspected places for smuggled goods, and which Otis pro- nounced "the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book;" since they placed " the liberty of every man in the hands of every petty officer," 1 All these matters are now a long way in the past ; but it has not been deemed unwise to repeat in the State constitu- tions, as well as in the Constitution of the United States,^ the principles already settled in the common law upon this vital point in civil liberty. For the service of criminal process, the houses of private par- ties are subject to be broken and entered under circumstances which are fully explained in the works on criminal law, and need not be enumerated here. And there are also cases where search- warrants are allowed to be issued, under which an officer may be protected in the like action. But as search-warrants are a species of process exceedingly arbitrary in character, and which ought rifled ; his most valuable papers are taken out of his possession, before the paper, for which he is charged, is found to be criminal by any competent jurisdiction, and before he is convicted either of writ- ing, publishing, or being concerned in the paper.' It had been found by the special verdict that many such warrants had been issued since the Bevolntion; but he wholly denied their legality. He referred the origin of the practice to the Star Chamber, wliich, in pursuit of libels, had given search-warrants to their mes- senger of the press, — a practice which, after the abolition of the Star Chamber, had been revived and authorized by the licensing act of Charles II., in the person of the secretary of state. And he con- jectured that this practice had been con- tinued after the expiration of tha't act, — a conjecture shared by Lord Mansfield and the Court of King's Bench. With the unanimous concurrence of the other judges of his court, this eminent magis- trate now finally condemned this danger- ous and unconstitutional practice." May's Constitutional History of England, c. 11. See also Seraayne's Case, 5 Coke, 91 ; 1 Smith's Lead. Cas. 18.3 ; Entinck v. Car- rington, 2 Wils. 275, and 19 State Trials, 1030; note to same case in Broom, Const. Law, 613 ; Money v. Leach, Burr. 1742 ; Wilkes's Case, 2 Wils. 151, and 19 State Trials, 1405. For debates in Parliament oil the same subject, see Hansard's De- bates, Vol. XV. pp. 1393-1418 ; Vol. XVI. pp. 6 and 209. In further illustration of the same subject, see De Lolme On the English Constitution, c. 18; Story on Const. §§ 1901, 1902; Bell v. Clapp, 10 Johns. 263; s. c. 6 Am. Dee. 339; Sailly V. Smith, 11 Johns. 500. 1 Works of John Adams, Vol. II. pp. 523, 524; 2 Hildreth's U. S. 499; 4 Ban- croft's U. S. 414 ; Quincy, Mass. Reports, 51. See also the appendix to these re- ports, p. 895, for a history of writs of assistance. 2 U. S. Const. 4th Amendment. The scope of this work does not call for any discussion of the searches of private prem- ises, and seizures of books and papers, which are made under the authority, or claim of authority, of the revenue laws of the United States. Perhaps, under no other laws are such liberties taken by ministerial officers ; and it would be sur- prising to find oppressive action on their part so often submitted to without legal contest, if the facilities they possess to embarrass, atinoy, and obstruct the mer- chant in his business were not borne in mind. The federal decisions, however, go very far to establish the doctrine thai;, in matters of revenue, the regulations Congress sees fit to establish, however unreasonable they may seem, must pre- vail. For a very striking case, see Hen- derson's Distilled Spirits, 14 Wall. 44. 368 CONSTITUTIONAL LIMITATIONS. [OH. X. not to be resorted to except for very urgent and satisfactory reasons, the rules of law which pertain to them are of more than ordinary strictness ; and if the party acting under them expects legal protection, it is essential that these rules be carefully ob- served. In the first place, they are only to be granted in the cases ex- pressly authorized by law; and not generally in such cases until after a showing made before a judicial oifficer, under oath, that a crime has been committed, and that the party complaining has reasonable cause to suspect that the offender, or the property which was the subject or the instrument of the crime, is concealed in some specified house or place.^ And the law, in requiring a showing of reasonable cause for suspicion, intends that evidence shall be given of such facts as shall satisfy the magistrate that the suspicion is well founded ; for the suspicion itself is no ground for the warrant except as the facts justify it.^ In the next place, the warrant which the magistrate issues must particularly specify the place to be searched and the object for which the search is to be made. If a building is to be searched, the name of the owner or occupant should be given ; ^ or, if not occupied, it should be particularly described, so that the officer will be left to no discretion in respect to the place ; and a misdescription in regard to the ownership,* or a description so general that it applies equally well to several buildings or places, would render the warrant void in law.* Search-warrants are always obnoxious to very serious objections ; and very great par- ticularity is justly required in these cases before the privacy of a man's premises is allowed to be invaded by the minister of the law.® And therefore a designation of goods to be searched for as " goods, wares, and merchandises," without more particular de- scription, has been regarded as insufficient, even in the case of 1 2 Hale, P. C. 142; Bishop, Cr. Pro. 1 R. I. 464. See McGlinchy v. Barrows, §§ 716-719; Archbold, Cr. Law, 147. An 41 Me. 74; Ashley v. Peterson, 25 Wis. officer may base a complaint upon the 621 ; Com. v. Intox. Liqnors, 140 Mass. information of a third person. Collins v. 287. So a warrant for the arrest of an Lean, 68 Cal. 284. unknown person under the designation of 2 Commonwealth v. Lottery Tickets, John Doe, without further description, is 5 Cush. 369 ; Else v. Smith, 1 D. & R. 97. void. Commonwealth ». Crotty, 10 Allen, » Stone I). Dana, 5 Met. 98. See Bell 403. For descriptions held sufficient, see V. Rice, 2 J.J. Marsh. 44; s. c. 19 Am. Wright ». Dressel, 140 Mass. 147; Com. Deo. 122. V. Certain Liquors, 146 Mass. 509. * Sandford v. Nichols, 13 Mass. 286 ; * A warrant for searching a dwelling- s. c. 7 Am. Dec. 151 ; Allen v. Staples, 6 house will not justify a forcible entry into Gray, 491. a bam adjoining the dwelling-hou^e, ' Thus a warrant to search the "houses Jones w. Fletcher, 41 Me. 254 ; Downing and buildings of Hiram Ide and Henry v Porter, 8 Gray, 539 ; Bishop, Cr. Pro. Ide," is too general. Humes ... Tabor, §§ 716-719. CH. X.] CONSTITUTIONAL PEOTEGTIONS, ETC. 369 goods supposed to be smuggled,^ where there is usually greater difficulty in giving description, and where, consequently, more latitude should be permitted than in the case of property stolen. Lord Sale says : " It is fit that such warrants to search do ex- press that search be made in the daytime ; and though I do not say they are unlawful without such restriction, yet they are very inconvenient without it; for many times, under pretence of searches made in the night, robberies and burglaries have been committed, and at best it creates great disturbance." ^ And the statutes upon this subject will generally be found to provide for searches in the daytime only, except in very special cases. The warrant should also be directed to the sheriff or other proper officer, and not to private persons ; though the party complainant may be present for the purposes of identification,' and other assistance can lawfully be called in by the officer if necessary. The warrant must also command that the goods or other arti- cles to be searched for, if found, together with the party in whose custody they are found, be brought before the magistrate, to the end that, upon further examination into the facts, the goods, and the party in whose custody they were, may be disposed of accord- ing to law.* And it is a fatal objection to such a warrant that it leaves the disposition of the goods searched for to the ministerial officer, instead of requiring them to be brought before the magis- trate, that he may pass his judgment upon the truth of the com- plaint made ; and it would also be a fatal objection to a statute authorizing such a warrant if it permitted a condemnation or other final disposition of the goods, without notice to the claimant, and without an opportunity for a hearing being afforded him.^ 1 Sandford v. Nichols, 13 Mass. 286 ; an inventory is made by the oflScer. Hus- s. c. 7 Am. Dec. 151 ; Archbold, Cr. Law, sey ^i. Davis, 58 N. H. 317. 14,3. " A certain quantity of rum being ' The " Search and Seizure " clause about and not exceeding 100 gallons " is in some of the prohibitory liquor laws sufficient. State ». Fitzpatrick, 11 Atl. was held void on this ground. Fisher v. Rep. 773 (R. !.)• McGirr, 1 Gray, 1 ; Greene v. Briggs, 1 2 2 Hale, P. C. 150. See Archbold, Curtis, 311 ; Hibbard v. People, 4 Mich. Cr. Law (7th ed.), 145; Com. e. Hinds, 126. See also Matter of Morton, 10 Mich. 145 Mass. 182. 208; Sullivan v. Oneida, 61 111. 242; 8 2 Hale, P. C. 150 ; Archbold, Cr. State v. Snow, 3 R. 1. 64, for a somewhat Law (7th ed.), 145. similar principle. It is not competent by < 2 Hale, P. C. 150 ; Bell v. Clapp. 10 law to empower a magistrate on mere in- Johns. 263 ; s. c. 6 Am. Deo. 339 ; Hib- formation, or on his own personal knowl- bard v. People, 4 Mich. 126 ; Fisher v. edge, to seize and destroy gaming-tables McGirr, 1 Gray, 1. If the statute ordains or devices without a hearing and trial, that the warrant shall require the officer Lowi'y v. Rainwater, 70 Mo. 152 ; s. c. 35 to make an inventory, one omitting this Am. Rep. 420. An act which declared command is no protection, though in fact that all nets, &c. used in cattihing fish in 24 370 CONSTITUTIONAL LIMITATIONS. [CH. X. The warrant is not allowed for the purpose of obtaining evi- dence of an intended crime ; but only after lawful evidence of an offence actually committed.^ Nor even then is it allowable to invade one's privacy for the sole purpose of obtaining evidence against him,'^ except in a few special cases where that which is the subject of the crime is supposed to be concealed, and the public or the complainant has an interest in it or in its destruc- tion. Those special cases are familiar, and well understood in the law. Search-warrants have heretofore been allowed to search for stolen goods, for goods supposed to have been smuggled into the country in violation of the revenue laws, for implements of gaming or counterfeiting, for lottery tickets or prohibited liquors kept for sale contrary to law, for obscene books and papers kept for sale or circulation, and for powder or other explosive and dangerous material so kept as to endanger the public safety .^ A statute which should permit the breaking and entering a man's house, and the examination of books and papers with a view to discover the evidence of crime, might possibly not be void on constitutional grounds in some other cases ; but the power of the legislature to authorize a resort to this process is one which can properly be exercised only in extreme cases, and it is better oftentimes that crime should go unpunished than that the citizeq should be liable to have his premises invaded, his desks broken open, his private books, letters, and papers exposed to prying curiosity, and to the misconstructions of ignorant and suspicious persons, — and all this ,under the direction of a mere ministerial officer, who brings with him such assistants as he pleases, and who will select them more often with reference to physical strength and courage than to their sensitive regard to the rights Tiolation thereof Bhould be forfeited, and preclude the seizure of one's papers in might be seized and destroyed or sold by order to obtain evidence against him ; the peace officer, was declared void in and the spirit of the fifth amendment — Hey Sing Jeck v. Anderson, 57 Cal. 251. that no person shall be compelled in a After seizure of money and acquittal of criminal case to give evidence against larceny, the money must be delivered to himself — would also forbid such seizure, defendant. State o. Williams, 61 Iowa, ^ These are the most common cases, 517. but in the following, search-warrants are 1 We do not say that it would be in- also sometimes provided for by statute : competent to authorize, by statute, the books and papers of a public character, issue of search-warrants for the preven- retained from their proper custody ; fe- tion of offences in some cases ; but it is males supposed to be concealed in houses difficult to state any case in which it of ill-fame ; children enticed or kept away might be proper, except in such cases of from parents or guardians ; concealed attempts, or of preparations to commit weapons j counterfeit money, and forged crime, as are in then?8elyes criminal. bills or papers. See cases under English " The fourth amendment to the Con- statutes specified in 4 Broom and Had- stitution of the United States, found also ley's Commentaries, 832. in many State constitutions, would clearlj' CH. X.] CONSTITUTIONAL PEOTECTIONS, ETC. 371 and feelings of others. To incline against the enactment of such laws is to incline to the side of safety.^ In principle they are 1 Instances sometimes occur in which ministerial officers take such liberties in endeavoring to detect and punish offend- ers, as are even more criminal than the offences they seek to punish. The em- ployment of spies and decoys to lead men on to the commission of crime, on the pretence of bringing criminals to justice, cannot be too often or too strongly con- demned; and that prying into private correspondence by officers wliich has sometimes been permitted by post-mas- ters, is directly in tlie face of the law, and cannot be excused. The importance of public confidence in the inviolability of correspondence through the post-office cannot well be overrated ; and the propo- sition to permit letters to he opened at the discretion of a ministerial officer, would excite general indignation. See Ex parte Jackson, 96 U. S. 727. In Maine it has been decided that a telegraph oper- ator may be compelled to disclose the contents of a message sent by him for another party, and that no rule of public policy would forbid. State ». Litchfield, 68 Me. 267. The case is treated as if no other considerations were involved than those which arise in the ordinary case of n voluntary disclosure by one private person to another, without necessity. Such, however, is not the nature of the communication made to the operator of the telegraph. That instrument is used as a means of correspondence, and as a valuable, and in many cases an indispen- sable, substitute for the postal facilities ; and the communication is made, not be- cause the party desires to put the oper- ator in possession of facts, but because transmission without it is impossible. It is not voluntary in any other sense than this, that the party makes it rather than deprive himself of the benefits of this great invention and improvement. The reasons of a public nature for maintaining the secrecy of telegraphic communication are the same with those which protect correspondence by mail ; and though the operator is not a public officer, that cir- cumstance appears to us immaterial. He fulfils an important public function, and the propriety of his preserving inviolable secrecy in regard to communications is so obvious, that it is common to provide statutory penalties for disclosures. If on grounds of public policy the operator should not voluntarily disclose, why do not the same considerations forbid the courts compelling him to do so? Or if it be proper to make him testify to the correspondence by telegraph, what good reason can be given why the postmas- ter should not be made subject to the process of subpcena for a like purpose, and compelled to bring the correspond- ence which passes through his hands into court, and open it for the purposes of evidence? This decision has been fol- lowed in some other cases. Henisler v. Freedman, 2 Pars. Sel. Cas. (Pa.) 274; First National Bank of Wheeling v. Mer- chants' National Bank, 7 W. Va. 544 ; Ex parte Brown, 72 Mo. 83; 8. c. 37 Am. Rep. 426; Woods v. Miller, 55 Iowa, 168: U. S. B. Hunter, 15 Fed. Eep. 712. See Gray, Communication by Telegraph, ch. V. We should suppose, w«re it not for the opinions to the contrary by tribunals so eminent, that the public could not be en- titled to a man's private correspondence, whether obtainable by seizing it in the mails, or by compelling the operator of the telegraph to testify to it, or by requir- ing his servants to take from his desks his private letters and journals, and bring them into court on subpana duces tecum. Any such compulsory process to obtain it seems a most arbitrary and unjustifiable seizure of private papers ; such an " un- rea^nable seizure " as is directly con- demned by the Constitution. In England, the secretary of state sometimes issues his warrant for opening a particular let- ter, where he is possessed of such facts as he is satisfied would justify him with the public ; but no American officer or body possesses such authority, and its usurpation should not be tolerated. I^et- ters and sealed packages subject to letter postage in the mail can be opened and ex- amined only under like warrant, issued upon similar oath or affirmation, particu- larly describing the thing to be seized, as is required when papers are subjected to search in one's own household. Ex parte Jackson, 96 U. S. 727. See this case for 372 CONSTITUTIONAL LIMITATIONS. [CH. X. objectionable ; in the mode of execution they are necessarily odious ; and they tend to invite abuse and to cover, the commis- sion of crime. We think it would generally be safe for the legis- lature to regard all those searches and seizures " unreasonable " vrhich have hitherto been unknown to the law, and on that ac- count to abstain from authorizing them, leaving parties and the public to the accustomed remedies.^ We have said that if the officer follows the command of his warrant, he is protected ; and this is so even when the complaint proves to have been unfounded.^ But if he exceed the command by searching in places not described therein, or by seizing persons or articles not commanded, he is not protected by the warrant, and can only justify himself as in other cases where he assumes to act without process.^ Obeying strictly the command of his warrant, he may break open outer or inner doors, and his justi- fication does not depend upon his discovering that for which he is to make search.* In other cases than those to which we have referred, and sub- ject to the general police power of the State, the law favors the complete and undisturbed dominion of every man over his own premises, and protects him therein with such jealousy that he a construction of the law of Congress for excluding improper matter from the mails. For an account of the former and present English practice on opening letters in the mail, see May, Constitutional History, c. 11 ; Todd, Parliamentary Government, Vol. I. p. 272 ; Broom, Const. Law, 616. ^ A search-warrant for libels and other papers of a suspected party was illegal at the common law. See 11 State Trials 313, 321 ; Archbold, Cr. Law (7th ed), 141 ; Wilkes o. Wood, 19 State Trials, 1153. " Search-warrants were never re- cognized by the common law as processes which might be availed of by individuals in the course of civil proceedings, or for the maintenance of any mere private right ; but their use was confined to the case of public prosecutions instituted and pursued for the suppression of crime and the detection and punishment of criminals. Even in those cases, if we may rely on the authority of Lord Coke, their legality was formerly doubted ; and Lord Camden said that they crept into the law by im- perceptible pracftice. But their legality has long been considered to be established on the ground of public necessity ; be- cause without them felons and other malefactors would escape detection." Merrick, J., in Robinson v, Bichardson, 13 Gray, 456. " To enter a man's house," said Lord Camden, " by virtue of a name- less warrant, in order to procure evidence, is worse than the Spanish Inquisition, — a law under which no Englishman would wish to live an hour." See his opinion in Entinck v. Carrington, 19 State Trials, 1029 ; 8. c. 2 Wils. 275, and Broom, Const. Law, 558 ; Huckle v. Money, 2 Wils. 205 ; Leach v. Money, 19 State Trials, 1001; s. o. 3 Burr. 1692 ; and 1 W. Bl. 555 ; note to Entinck v. Carrington, Broom, Const. Law, 613. 2 Barnard v. Bartlett, 10 Cush. 501. After the goods seized are taken before the magistrate, the oflScer is not liable for them to the owner. Collins v. Lean, 68 Cal. 284. ' Crozier ». Cudney, 9 D. & E. 224 ; Same case, 6 B. & C. 232; State i>. Bren- nan's Liquors, 25 Conn. 278. Where the warrant was for the search of the person, and the goods were found on the floor of the room were he was, their seizure was held lawful. Collins v. Lean, 68 Cal. 284. * 2 Hale, P. C. 151 ; Barnard v. Bart- lett, 10 Cush. 501. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 373 may defend his possession against intruders, in person or by his servants or guests, even to the extent of taking the life of the intruder, if that seem essential to the defence.^ Quartering Soldiers in Private Souses. A provision is found incorporated in the constitution of nearly every State, that " no soldier shall in time of peace be quartered in any house without the consent of the ovrner, nor in time of ■war but in a manner to be prescribed by law." To us, after four- fifths of a century have passed away since occasion has existed for complaint of the action of the government in this particular, the repetition of this declaration seems to savor of idle form and ceremony ; but " a frequent recurrence to the fundamental prin- ciples of the Constitution " can never be unimportant, and indeed may well be regarded as " absolutely necessary to preserve the advantages of liberty, and to maintain a free government." ^ It is difficult to imagine a more terrible engine of oppression than the power in the executive to fill the house of an obnoxious per- son with a company of soldiers, who are to be fed and warmed at his expense, under the direction of an officer accustomed to the exercise of arbitrary power, and in whose presence the ordinary laws of courtesy, not less than the civil restraints which protect person and property, must give way to unbridled will ; who is sent as an instrument of punishment, and with whom insult and outrage may appear quite in the line of his duty. However con- 1 That in defence of liimself, any stood at the common law. Pond n. Peo- member of his family, or his dwelling, a pie, 8 Mich. 150; State v. Middleham, 62 man has a' right to employ all necessary Iowa, 150 ; State v. Scheele, 18 Atl. Rep. violence, even to the taking of life, see 256 (Conn.) ; Parrish v. Com., 81 Va, 1; Shorter v. People, 2 N. Y. 193; Yates v. Bledsoe v. Com., 7 S. W. Rep. 884 (Ky.). People, 32 N. Y. 609 ; Logue v. Common- And in deciding what force it is neces- wealth, 38 Pa. St. 265 ; Pond v. People, sary to employ in resisting the assault, a 8 Mich. 150; Maherw. People, 24 111.241 ; person must act upon the circumstances Bohannan v. Commonwealth, 8 Bush, 481 ; as they appear to him at the time ; and B. o. 8 Am. Rep. 474 ; Bean v. State, 25 he is not to be held criminal because on Tex. App. 846. But except where a for- a calm survey of the facts afterwards it cible felony is attempted against person appears that the force employed in de- er property, he should avoid such conse- fence was excessive. See the cases above quences, if possible, and cannot justify cited ; also Sohnier v. People, 23 111. 17 ; standing up and resisting to the death, Patten v. People, 18 Mich. 314 ; Hinton when the assailant might have been v. State, 24 Tex. 454 ; People ». Flana- avoided by retreat. People v. Sullivan, gan, 60 Cal. 2. But the belief must be 7N. Y. 396; Carter ». State, 82 Ala. 13. bona fide and upon reasonable grounds. But a man assaulted in his dwelling is State v. Peacock, 40 Ohio St. 383. under no obligation to retreat ; his house ^ Constitutions of Massachusetts, New is his castle, which he may defend to any Hampshire, Vermont, Florida, Illinois, extremity. And this means not simply and North Carolina. See also Constitu- the dwelling-house proper, but includes tions of Virginia, Nebraska, and Wiscon- whatever is within the curtilage as under- sin, for a similar declaration. 374 CONSTITUTIONAL LIMITATIONS. [CH. X trary to the spirit of the age such a proceeding may be, it may always be assumed as possible that it may be resorted to in times of great excitement, when party action is generally violent ; and " the dragonnadea of Louis XIV. in France, of James II. in Scot- land, and those of more recent and present date in certain coun- tries, furnish sufficient justification for this specific guaranty." ^ The clause, as we find it in the national and State constitutions, has come down to us through the Petition of Right, the Bill of Rights of 1688, and the Declaration of Independence ; and it is but a branch of the constitutional principle, that the military shall in time of peace be in strict subordination to the civil power.^ Criminal Accusations. Perhaps the most important of the protections to personal liberty consists in the mode of trial which is secured to every person accused of crime. At the common law, accusations of felony were made in the form of an indictment by a grand jury ; and this process is still retained in many of the States,^ while others have substituted in its stead an information filed by the prosecuting officer of the State or county. The mode of investigat- ing the facts, however, is the same in all ; and this is through a trial by jury, surrounded by certain safeguards which are a well- ' Lieber, Civil Liberty and Self-GoT- authorizing commitment witliout exam- ernment, c. 11. ination, upon summary arrest, of a par- 2 Story on the Constitution. §§ 1899, doned convict for violating the condition 1900; Bawle on Constitution, 120. In' of his pardon, is invalid. People v. exceptional cases, however, martial law Moore, 62 Mich. 496. The indictment may be declared and enforced whenever for a State offence can only be by the the ordinary legal authorities are unable grand jury of the county of offence. Ex to maintain the public peace and suppress parte Slater, 72 Mo. 102 ; Weyrich :>. violence and outrage. Todd, Parliamen- People, 89 III. 90. The fourteenth tary Government in England, Vol. I. p. amendment to the federal Constitution 342 ; 1 Bl. Com. 418-416. As to martial is not violated by dispensing with a law in general, see Ex parte Milligan, 4 grand jury. Hurtado i'. California, 110 Wall. 129. U. S. 516 ; Kalloch v. Superior Court, » Tlie accusation, whether by indict- 56 Cal. 229; State v. Boswell, 104 Ind. ment or information, must be sufSciently 541. Nor does it forbid a grand jury of specific fairly to apprise the respondent of seven, if a State law so provides. Hau- the nature of the charge against him, so senfluck v. Com., 8 S. E. Rep. 683 (Va.). that he may know what he is to answer. In the federal courts Infamous crimes and so that the record may show, as far must be prosecuted by indictment, and as may be, for what he is put in jeopardy, they are held to be such as are punished Whitney i>. State, 10 Ind. 404 ; State v. by Imprisonment in » penitentiary with O'Flaherty, 7 Nev. 158; State v. Mc- or without hard labor. £r parte Wilson, Kenna, 17 Atl. Rep. 51 (R. 1). The le- H4 U. S. 417; Mackin v United States, gislature may allow simplification of old 117 U. S. 348; United States v. De Walt, forms of indictment. Com. ». Freelove, 128 U. S. 393. See State ->. West, 43 22 N. E. Rep. 435 (Mass ). As to amend- N. W. Rep. 845 (Minn.). Compare State ment of indictments, see p. 327. A law v. Kolan, 15 R. I. 629. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 375 understood part of the system, and which the government cannot dispense with. First, we may mention that the humanity of our law always presumes an accused party innocent until he is proved to be guilty. This is a presumption which attends all the proceedings against him, from their initiation until they result in a verdict, which either finds the party guilty or converts the presumption of innocence into an adjudged fact.^ If there were any mode short of confinement which would, with reasonable certainty, insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the eifect is to subject him, in a greater or less degree, to the punishment of a guilty personj while as yet it is not determined that he has committed any 1 See Sullivan v. Oneida, 61 111. 242. An act making the fact of killing of cattle by a railroad train prima facie evi- dence of negligence, and such negligence a misdemeanor on the part of the super- ■intendent and president, is void as de- priving of this presumption. State v. Divine, 9S N. C. 778. It is sometimes claimed that vrhere insanity is set up as a defence in a criminal case, the de- fendant takes upon himself the burden of proof to establish it, and that he must make it out beyond a reasonable doubt. See Clark v. State, 12 Ohio, 494 ; Loefener V. State, 10 Ohio, n. s. 599; Bond v. State, 23 Ohio, ir. s 346 ; State v. Felton, 82 Iowa, 49; McKenzie v. State, 42 Ga. 884; Boswell i>. Commonwealth, 20 Gratt. 860; Baccigalupo «. Common- wealth, 33 Gratt. 807 ; 8. c. 36 Am. Rep. 795 ; State v. Hoyt, 47 Conn. 518 ; Wright V. People, 4 Neb. 407 ; State v. Pratt, 1 Houst. C. C. 249; State v. Hurley, 1 Houst. C. C. 28 ; State v. De Ranee, 34 La. An. 186. Or at least by a clear pre- ponderance of evidence. Boswell v. State, 68 Ala. 307; s. c. 35 Am. Rep. 20; State v. Redemeier, 71 Mo. 173; 8. c. 36 Am. Rep. 462; Webb v. State, 9 Tex. App. 490; Johnson v. State, 10 Tex. App. 571 ; State v. Coleman, 27 La Ann. 691; State v. Strauder, 11 W.Va. 745, 823; Ortwein v. Commonwealth, 76 Pa. St. 414; 8. c. 18 Am. Rep. 420; "State V. Starling, 6 Jones (N. C), 366; State V. Payne, 86 X. C. 609 ; State v. Smith, 53 Mo. 267 ; People v. McDonnell, 47 Cal. 134; Commonwealth v. Eddy, 7 Gray, 583; Danforth v. State, 75 Ga. 614; Ball V. Com., 81 Ky. 662 ; State v. Bundy, 24 S. C. 439. Other well-considered cases do not support this view. The burden of proof, it is held, rests throughout upon the prosecution to establish all the condi- tions of guilt ; and the presumption of innocence that all the while attends the prisoner entitles him to an acquittal, if the jury are not reasonably satisfied of his guilt. See State v. Marler, 2 Ala. 43 ; Commonwealth v. Myers, 7 Met. 500; Polk V. State, 19 Ind. 170; Cliase v. Peo- ple, 40 111. 352 ; People v. Schryver, 42 N. Y. 1; Stevens v. State, 31 Ind. 485; State V. Pike, 49 N. H. 399; State v. Jones, 50 N. H. 849 ; People v. McCann, 16 N. Y. 58 ; Commonwealth v. Kimball, 24 Pick. 373 ; Commonwealth v. Dana, 2 Met. 340; Hopps v. People, 31 111. 885; People V. Garbutt, 17 Mich. 23 ; State v. KUnger, 43 Mo. 127 ; State v. Hundley, 46 Mo. 414; State v. Lowe, 93 Mo. 547; Ballard v. State, 19 Neb. 609; State v. Crawford, 11 Kan. 82; Brotherton v. People, 75 N. Y. 159; O'Connell v. Peo- ple, 87 N. Y. 377; Pollard v. State, 53 Miss. 410 ; Cunningham v. State, 56 Miss. 269; 8. c. 31 Am. Rep. 360. But the prosecution may rely upon the presump- tion of sanity which exists in all cases, until the defence puts in evidence which creates a reasonable doubt. Peopje v. Finley, 88 Mich. 482. And see Guetig v. State, 66 Ind. 94 ; 8. c. 32 Am. Rep. 99. A statute may require insanity to be spe- cially pleaded. Bennett v. State, 57 Wis. 69. 376 CONSTITUTIONAL LIMITATIONS. [CH. X. crime. If the punishment on conviction cannot exceed in sever- ity the forfeiture of a large sum of money, then it is reasonable to suppose that such a sum of money, or an agreement by respon- sible parties to pay it to the government in case the accused should fail to appear, would be suificient security for his attend- ance; and therefore, at the common law, it was customary to t^ke security of this character in all cases of misdemeanor ; one or more friends of the accused undertaking for his appearance for trial, and agreeing that a certain sum of money should be levied of their goods and chattels, lands and tenements, if he made default. But in the case of felonies, the privilege of giving bail before trial was not a matter of right ; and in this country, although the criminal code is much more merciful than it for- merly was in England, and in some cases the allowance of bail is almost a matter of course, there are others in which it is dis- cretionary with the magistrate to allow it or not, and where it will sometimes be refused if the evidence of guilt is strong or the presumption great. Capital offences are tiot generally regarded as bailable; at least, after indictment, or when the party is charged by the finding of a coroner's jury ; ^ and this upon the • supposition that one who may be subjected to the terrible punish- ment that would follow a conviction, would not for any mere pecuniary considerations remain to abide the judgment.^ And where the death penalty is abolished and imprisonment for life substituted, it is believed that the rule would be the same not- withstanding this change, and bail would still be denied in the case of the highest offences, except under very peculiar circum- stances.^ In the case of other felonies it is not usual to refuse bail, and in some of the State constitutions it has been deemed important to make it a matter of right in all cases except on capital charges "when the proof is evident or the presumption great." * 1 Matter of Barronet, 1 El. & BI. 1 : Ex when all felonies were capital it was dis- parte Tayloe, 5 Cow. 39. In homicide it cretionary with the courts to allow bail is said bail should be refused if the before trial. 4 Bl. Comj 297, and note, evidence is such that tlie iudge would * The constitutions of a m^'ority of sustain a capital conviction upon it. Ex the States now contain provisions to this parte Brown, 65 Ala. 446. efiFect. And see Foley v. People, 1 UL 2 State V. Summons, 19 Ohio, 139. 31 ; Ullery v. Commonwealth, 8 B. Monr. ' The courts have power to bail, even 3; Shore v. State, 6 Mo. 640, State v. in capital cases. United States v. Harail- Summons, 19 OhiOj 139; Ex parte Wray, ton, 3 Dall. 17 ; United States v. Jones. 3 30 Miss. 678 ; Moore w. State, 36 Miss. Wash. 209 ; State o. Eockafellow, 6 N. J. 137 ; Ex parte Banks, 28 Ala. 89 ; Ex parte 332; Commonwealth B.Semmes, 11 Leigh, Dykes, 83 Ala. 114; Ex parte Kendall, 665; Commonwealth v. Archer, 6 Gratt. 100 Ind. 599; In re Malison, 36 Kan. 725 j 705 ; People v. Smith, 1 Cal. 9 ; People v. Matter of Troia, 64 Cal. 152. Van Home, 8 Barb. 158. In England CH. X.] CONSTITUTIONAL PKOTECTIONS, ETC. 377 When bail is allowed, unreasonable hail is not to be required ; but the constitutional principle that demands this is one which, from the very nature of the case, addresses itself exclusively to the judicial discretion and sense of justice of the court or magis- trate empowered to fix upon the amount. That bail is reasona- ble which, in view of the nature of the offence, the penalty which the law attaches to it, and the probabilities that guilt will be established on the trial, seems no more than sufficient to secure the party's attendance. In determining this, some regard should be had to the prisoner's pecuniary circumstances ; that which is reasonable bail to a man of wealth being equivalent to a denial of right if exacted of a poor man charged with the like offence. When the court or magistrate requires greater security than in his judgment is needful to secure attendance, and keeps the pris- oner in confinement for failure to give it, it is plain that the right to bail which the constitution attempts so carefully to secure has been disregarded ; and though the wrong is one for which, in the nature of the case, no remedy exists, the violation of consti- tutional privilege is aggravated, instead of being diminished, by that circumstance.^ The presumption of innocence is an absolute protection against conviction and punishment, except either, first, on confession in open court ; or, second, on proof which places the guilt beyond any reasonable doubt. Formerly, if a prisoner arraigned for felony stood mute wilfully, and refused to plead, a terrible mode was resorted to for the purpose of compelling him to do so ; and this might even end in his death : ^ but a more merciful proceed- ing is now substituted ; the court entering a plea of not guilty for a party who, for any reason, fails to plead for himself. Again, it is required that the trial be speedy ; and here also the injunction is addressed to the sense of justice and sound judg- ment of the court.^ In this country, where ofiicers are specially 1 The magistrate in taking bail exer- or judgment without plea ; and an accused cises an authority essentially judicial, party might therefore sometimes stand Begina v. Badger, 4 Q. B. 468 ; Linford v. mute and suffer himself to be pressed to Pitzroy, 13 Q. B. 240. Ab to his duty to death, in order to save his property from look into the nature of the charge and forfeiture. Poor Giles Corey, accused of the evidence to sustain it, see Barronet's witchcraft, was perhaps the only person Case, 1 Kl. & Bl. 1. See Carmody o. ever pressed to death for refusal to plead State, 105 Ind. 546, as to fixing amount of in America. 3 Bancroft's U. S. 93 ; 2 bail in advance for different classes of Hildreth's U. S. 160. For English cases, cases. see Cooley's Bl. Com. 325, note. Now in 2 4 Bl. Com. 324. In treason, petit fel- England the court enters a plea of not ony, and misdemeanors, wilfully standing guilty for a prisoner refusing to plead, mute was ecfuivalent to a conviction, and and the trial proceeds as in other cases. the same punishment might be imposed ; ' Speedy trial is said to mean a trial but in other oases there could be no trial so soon after indictment as the prosecu- 378 CONSTITUTIONAL LIMITATIONS. [CH. X. appointed or elected to represent the people in these prosecutions, their position gives them an immense power for oppression ; and it is to be feared they do not always sufficiently appreciate the responsibility, and wield the power with due regard to the legal rights and privileges of the accused.^ When a person charged with crime is willing to proceed at once to trial, no delay on the part of the prosecution is reasonable, except only that which is necessary for proper preparation and to secure the attendance of witnesses.^ Very much, however, must be left to the judgment of the prosecuting officer in these cases ; and the court would not compel the government to proceed to trial at the first term after indictment found or information filed, if the officer who represents it should state, under the responsibility of his official oath, that he was not and could not be ready at that time.* But further delay would not generally be allowed without a more specific showing of the causes which prevent the State proceeding to trial, including the names of the witnesses, the steps taken to procure them,* and the facts expected to be proved by them, in order that the court might judge of the reasonableness of the application, and that the prisoner might, if he saw fit to take that course, secure an immediate trial by admitting that the witnesses, if present, would testify to the facts which the prosecution have claimed could be proved by them.^ tion can, by a fair exercise of reasonable fact they were present and kept in con- diligence, prepare for trial ; regard being cealment by this functionary. Curtis v. had to the terms of court. United States State, 6 Cold. 9. V. Fox, 3 Mont. 612 ; Creston i>. Nye, ' See this discussed in Ex parte Stan- 74 Iowa, 369. If it becomes necessary ley, 4 Nev. 118. to adjourn the court without giving trial, ° Watts v. State, 26 Ga. 231. tlie prisoner sliould be bailed, though not * The Habeas Corpus Act, 31 Ch. II. otherwise entitled to it. Ex parte Caplis, c. 2, § 1, required a prisoner charged with 68 Miss. 358. crime to be released on bail, if not in- ^ It is the duty of the prosecuting at- dieted the first term after the commit- torney to treat the accused with judicial meiit, unless the king's witnesses could fairness : to inflict injury at the expense not be obtained ; and that he should be of justice is no part of the purpose for brought to trial as early as the second 'which he is chosen. Unfortunately, how- terra after the commitment. The prin- ever, we sometimes meet with cases in ciples of this statute are considered as which these ofScers appear to regard having been adopted into the American themselves as the counsel for the com- common law. Post, p. 419. See In re plaining party rather than the impartial Garvey, 7 Col. 502 ; In re Edwards, 85 representatives of public justice. But Kan. 99. we trust it is not often tliat cases occur ' Such an admission, if made by the like one in Tennessee, in which tlie prisoner, is binding upon him, and dis- Supreme Court felt called upon to set penses with the necessity of producing aside a verdict in a criminal case, where the witnesses. United States v. Sacra- by the artifice of tlie prosecuting officer mento, 2 Mont. 239 ; 8. c. 26 Am. Rep. tlie prisoner had been induced to go to 742; Hancock v. State, 14 Tex. App. trial under the belief tliat certain wit- 392 ; State v. Fooks, 66 Iowa, 462. But nesses for the State were absent, when in in general the riglit of the prisoner to CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 379 It is also requisite that the trial be public. By this is not meant that every person who sees fit shall in all cases be per- mitted to attend criminal trials; because there are many cases where, from the character of the charge and the nature of the evidence by which it is to be supported, the motives to attend the trial on the part of portions of the community would be of the worst character, and where a regard to public morals and public decency would require that at least the young be excluded from hearing and witnessing the evidences of human depravity which the trial must necessarily bring to light. The requirement of a public trial is for the benefit of the accused ; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the impor- tance of their functions ; and the requirement is fairly observed if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether.^ But a far more important requirement is that the proceeding to establish guilt shall not be inquisitorial. A peculiar excellence of the common-law system of trial over that which has prevailed in other civilized countries, consists in the fact that the accused is never compelled to give evidence against himself. Much as there was in that system that was heartless and cruel, it recog- nized fully the dangerous and utterly untrustworthy character of extorted confessions, and was never subject to the reproach that it gave judgment upon them.^ be confronted with the witnesses against land, Edinb. Beview, Oct. 1858. And for him cannot be waived in advance. Bell an illustration of inquisitorial trials in V. State, 2 Tex. App. 216 ; s. c. 28 Am. our own day, see Trials of Troppman Kep. 429. Nor can he be forced to ad- and Prince Pierre Bonaparte, Am. Law mit what an absent witness would testify Review, Vol. V. p. 14. Judge Foster re- to. Wills V. State, 73 Ala. 362. A stat- lates from Whitelocke, that the Bishop ute forbidding a continuance if the pros- of London having said to Felton, who ecutor admits that defendant's absent had assassinated the Duke of Bucking- witness would testify as stated in the ham, " If you will not confess you must affidavit for continuance, is void. State go to the rack," the man replied, " If it r. Berkley, 92 Mo. 41. must be so, I know not whom 1 may ac- 1 See People v. Kerrigan, 73 Cal. 222 ; cuse in the extremity of my torture, — People V. SwafEord,. 65 Cal. 223 ; Grim- Bishop Laud, perhaps, or any lord of this mett V. State, 22 Tex. App. 36 ; State v. board." " Sound sense," adds Foster, Brooks, 92 Mo. 542. " in the mouth of an enthusiast and rnf- 2 See Lieber's paper on Inquisitorial flan." Laud having proposed the rack. Trials, Appendix to Civil Liberty and the matter was shortly debated at the Self-Government. Also the article on board, and it ended in a reference to the Criminal Procedure in Scotland and Eng- judges, who unanimously resolved that 380 CONSTITUTIONAL LIMITATIONS. [CH. X. It is the law in some of the States, when a person is charged with crime, and is brought before an examining magistrate, and the witnesses in support of the charge have been heard, that the prisoner may also make a statement concerning the transaction charged against him, and that this may be used against him on the trial if supposed to have a tendency to establish guilt. But the prisoner is to be first cautioned that he is under no obligation to answer any question put to him unless he chooses, and that whatever he says and does must be entirely voluntary .^ He is also to be allowed the presence and advice of counsel ; and if that privilege is denied him it may be sufi&cient reason for discrediting any damaging statements he may have made.^ When, however, the statute has been complied with, and no species of coercion appears to have been employed, the statement the prisoner may have made is evidence which can be used against him on his trial, and is generally entitled to great weight.^ And in any other case except treason* the confession of the accused may be re- ceived in evidence to establish his guilt, provided no circumstance accompanies the making of it which should detract from its weight in producing conviction. But to make it admissible in any case it ought to appear that it was made voluntarily, and that no motives of hope or fear were employed to induce the accused to confess." The evidence ought the rack could not be legally used. De P. 124; People w. McMalion, 15 N. Y. 384. Lolme on Constitution of England (ed. "The view of the English judges, tliat of 1807), p. 181, note ; 4 Bl. Com. 325 ; an oath, even where a party is informed Broom, Const. Law, 148; Trial of Felton, he need answer no questions unless he 3 State Trials, 368, 371 ; Fortescue De pleases, would, with most persons, over- Laud, c. 22, and note by Amos ; Brodie, come that caution, is, I think, founded Const. Hist. c. 8. A legislative body has on good reason and experience. I think no more right than a court to make its there is no country — certainly there is examination of parties or witnesses in- none from which any of our legal no- quisitorial. Emery's Case, 107 Mass. 172. tions are borrowed — where a prisoner See further, Horstman v. Kaufman, 97 Pa. is ever examined on oath." People v. St. 147 ; Blackwell v. State, 67 Ga. 76 ; Thomas, 9 Mich. 814, 318, per Camp- State V. Lurch, 12 Oreg. 95. hdl, 3. 1 See Rev. Stat, of New York, Pt. 4, < In treason there can be no conviction c. 2, tit. 2, §§ 14-16. unless on the testimony of two witnessea 2 Rex V. Ellis, Ry. & Mood. 432. How- to the same oTert act, or on confession in ever, there is no absolute right to the open court. Const, of United States, art. presence of counsel, or to publicity in 3, § 3. these preliminary examinations, unless ^ See Smith v. Commonwealth, 10 Gratt. given by statute. Cox v. Coleridge, 1 734 ; Shifllet v. Commonwealth, 14 Gratt. B. & C. 87. 652 ; Page B.Commonwealth, 27 Gratt. 954; * It should not, however, be taken on Williams v. Commonwealth, 27 Gratt. 997 ; oath, and if it is, that will be sufficient United States v. Cox, 1 Cliff. 5, 21 ; Jor- reason for rejecting it. Rex v. Smith, 1 dan's Case, 32 Miss. 382 ; Runnels v. State, Stark. 242 ; Rex v. Webb, 4 C. & P. 564; 28 Ark. 121 ; Commonwealth «. Holt, 121 Rex V. Lewis, 6 C. & P. 161 ; Rex v. River, Mass. 61 ; Miller v. People, 39 111. 457. 7 C. & P. 177 ; Regina v. Pikesley, 9 C. & CH. X.] CONSTITUTIGNAL PKOTECTIONS, ETC. 381 to be clear and satisfactory that the prisoner was neither threat- ened nor cajoled into admitting what very possibly was untrue. Under the excitement of a charge of crime, coolness and self- possession are to be looked for in very few persons ; and however strongly we may reason with ourselves that no one will confess a heinous offence of which he is not guilty, the records of criminal courts bear abundant testimony to the contrary. If confessions could prove a crime beyond doubt, no act which was ever pun- ished criminally would be better established than witchcraft ;> and the judicial executions which have been justified by such confessions ought to constitute a solemn warning against the too ready reliance upon confessions as proof of guilt in any case. As "Mr. Justice Parke several times observed," while holding one of his circuits, " too great weight ought not to be attached to evidence of what a party has been supposed to have said, as it very frequently happens, not only that the witness has misunder- stood what the party has said, but that by unintentionally alter- ing a few of the expressions really used, he gives an effect to the statement completely at variance with what the party really did say." 2 And when the admission is full and positive, it perhaps quite as often happens that it has been made under the influence of the terrible fear excited by the charge, and in the hope that confession may ward off some of the consequences likely to follow if guilt were persistently denied. , A confession alone ought not to be sufficient evidence of the corpus delicti. There should be other proof that a crime has actually been committed ; and the confession should only be allowed for the purpose of connecting the defendant with the offence.3 And if the party's hopes or fears are operated upon to 1 See Mary Smith's Case, 2 Howell's 574 ; Derby v. Derby, 21 N. J. Eq. 36 j State Trials, 1049 ; Case of Essex Witches, State v. Chambers, 39 Iowa, 179. 4 Howell's State Trials, 817 ; Case of Suf- » In Stringfellow v. State, 26 Miss. 157, folk Witches, 6 Howell's State Trials, 647 ; a confession of murder was held not suf- Case of Devon Witches, 8 Howell's State flcient to warrant conviction, unless the Trials, 1017. It is true that torture was death of the person alleged to have been employed freely In cases of alleged witch- murdered was shown by other evidence, craft, but the delusion was one which In People ». Hennessey, 15' Wend. 147, it often seized upon the victims as well as was decided that a confession of embez- their accusers, and led the former to element by a clerk would not warrant a freely confess the most monstrous and conviction where that constituted the sole impossible actions. Much curious and evidence that an embezzlement had been valuable information on this subject may committed. So on an indictment for be found in " Superstition and Force," blasphemy, the admission by the defend- by Lea; "A Physician's Problems," by ant that he spoke the blasphemous charge, Elam ; and Lecky, History of Bationalism. is not sufficient evidence of the uttering. " Note to Earle v. Picken, 5 C. & P. People v. Porter, 2 VtA. Cr. R. 14. And 642. See also 1 Greenl. Ev. § 214, and see State v. Guild, 10 N. J. 163 ; s. c. 18 note; Commonwealth v. Curtis, 97 Mass. Am. Dec. 404; Long's Case, 1 Hayw. 382 CONSTITUTIONAL LIMITATIONS. [CH. X. induce him to make it, this fact will be sufficient to preclude the confession being received ; the rule upon this subject being so strict that even saying to the prisoner it will be better for him to confess, has been decided to be a holding out of such inducements to confession, especially when said by a person having a prisoner in custody, as should render the statement obtained by means of it inadmissible.^ If, however, statements have been made before 524 ; People v. Lambert, 5 Mich. 349 ; Ru- loff V. State, 18 N. Y. 179 ; Hector v. State, 2 Mo. 166 ; s. c. 22 Am. Dec. 454 ; Rob- erts u. People, 11 Col. 213 ; Winslow v. State, 76 Ala. 42. 1 Hex V. Enoch, 5 C. & P. 539 ; State V. Bostick. 4 Harr. 563; Boyd v. State, 2 Humph. 390; Morehead v. State, 9 Humph. C35; Commonwealth v. Taylor, 5 Cash. 605; Bex v. Partridge, 7 C. & P. 551 ; Commonwealth v. Curtis, 97 Mass. 574 ; State v. Staley, 14 Minn. 105 ; Frain V. State, 40 Ga. 629 ; Austine v. State, 51 111. 286; People v. Phillips, 42 N. Y. 200; State V. Brockman, 46 Mo. 666 ; Common- wealth V. Mitchell, 117 Mass. 431 ; Com- monwealth V. Sturtivant, 117 Mass. 122 ; Corley v. State, 50 Ark. 305. Mr. PhU- lips states the rule thus : " A promise of benefit or favor, or threat or intima- tion of disfavor, connected with the sub- ject of the charge, held out by a person having authority in the matter, will be suf- ficient to exclude a confession made in con- sequence of such inducements, either of hope or fear. The prosecutor, or the pros- ecutor's wife or attorney, or the prisoner's master or mistress, or a constable, or a person assisting him in the apprehension or custody, or a magistrate acting in the business, or other magistrate, has been re- spectively looked upon as having author- ity in the matter ; and the same principle applies if the inducement has been held out by a person without authority, but in the presence of a person who has such authority, and with his sanction, either express or implied.' 1 Phil. Ev. by Cowen, Hill, and Edwards, 544, and cases cited. But we think the better reason is in favor of excluding confessions where inducements have been held out by any person, whether acting by authority or not. Bex v. Simpson, 1 Mood. C. C. 410 ; State V. Guild, 10 N. J. 168 ; a. c. 18 Am. Dec. 404 ; Spears v. State, 2 Ohio St. 683 ; Commonwealth v. Knapp, 9 Pick. 496; Bex V. Clewes, 4 C. & P. 221; Bex v. Kingston, 4 C. & P. 387 ; Rex v. Dunn, 4 C. & P. 543; Rex v. Walkley, 6 C. & P. 175 ; Rex V. Thomas, 6 C. & P. 353. " The reason is, that in the agitation of mind in which the party charged is supposed to be, he is liable to be influenced by the hope of advantage or fear of injury to state things which are not true." Per Morton, J., in Commonwealth v. Knapp, 9 Pick. 496, 502 ; People v. McMahon, 15 N. Y. 387. There are not wanting many opposing authorities, which proceed upon the idea, that " a promise made by an in- different person, who interfered officiously without any kind of authority, and prom- ised without the means of performance, can scarcely be deemed sufficient to pro- duce any efiect, even on the weakest mind, as an inducement to confess." 1 Greenl. Ev. § 223. No supposition could be more fallacious ; and, in point of fact, a case can scarcely occur in which some one, from age, superior wisdom, or expe- rience, or from his relations to the ac- cused or to the prosecutor, would not be likely to exercise more influence upon his mind than some of the persons who are regarded as "in authority" under the rule as stated by Mr. Phillips. Mr. Green- leaf thinks that, while as a rule of law all confessions made to persons in authority should be rejected, " promises and threats by private persons, however, not being found so uniform in their operation, per- haps may, with more propriety, be treated as mixed questions of law and fact; the principle of law, that a. confession must be voluntary, being striijtiy adhered to, and the question, whether the promises or threats of the private individuals who employed them were sufficient to over- come the mind of the prisoner, being left to the discretion of the judge under all the circumstances of the case." 1 Greenl. Ev. § 223. This is a more reasonable rule than that which admits such confessions under all circumstances ; hut it is impos- sible for a judge to say whether induce- CH. X.] CONSTITUTIONAL PROTECTIONS, ETC, 383 the confession which were likely to do away with the effect of the inducements, so that the accused cannot be supposed to have acted under their influence, the confession may' be received in evidence;^ but the showing ought to be very satisfactory on this point before the court should presume that the prisoner's hopes did not still cling to, or his fears dwell upon, the first inducements.^ ments, in a particular case, have influenced the mind or not ; if their nature were Buch tliat they were calculated to have that efEect, it is safer, and more in ac- cordance with the humane principles of our criminal law, to presume, in favor of life and liberty, that the confessions were "forced from the mind by the flattery of hope, or by the torture of fear" (per Eyre, C. B., Warickshall's Case, 1 Leach, C. C. 299), and exclude them altogether. In case of doubt as to the fact that the confession was voluntary, the jury should be left to exclude it, if they think it in- voluntary. Com. B. Preece, 140 Mass. 276 ; People v. Barker, 60 Mich. 277. In Ellis V. State, 66 Miss. 44, it is held the duty of the court to decide whether it was voluntary, and that the jury may or may not believe it true, if admitted. This whole subject is very fully consid- ered in note to 2 Leading Criminal Cases, 182. And see Whart. Cr. Law, § 686 et seq. The cases of People ». McMahon, 15 N. Y. 385, and Commonwealth v. Curtis, 97 Mass. 574, have carefully considered the general subject. In the second of these, the prisoner had asked the officer who made the arrest, whether he had better plead guilty, and the officer had replied that " as a general thing it was better for a man who was guilty to plead guilty, for he got a lighter sentence." After this he made statements which were relied upon to prove guilt. These statements were not allowed to be given in evidence. Per Foster, J. : " There is no doubt that any inducement of temporal fear or favor coming from one in authority, which pre- ceded and may have influenced a confes- sion, will cause it to be rejected, unless the confession is made under such circum- stances as show that the influence of the inducement has passed away. No cases require more careful scrutiny than those of disclosures made by a party under ar- rest to the officer who has him in custody, and in none will slighter threats or prom- ises of favor exclude the subsequent con- fessions. Commonwealth o. Taylor, 6 Cush.610; Commonwealth v. Tuckerman, 10 Gray, 198 ; Commonwealth t;. Morey, 1 Gray, 461. ' Saying to the prisoner that it will be the worse for him if he does not confess, or that it will be the better for him if he does, is sufficient to exclude the confession, according to constant experi- ence.' 2 Hale, P. C. 659; 1 Greenl. Ev. § 219 ; 2 Bennett and Heard's Lead. Cr. Cas. 164; Ward v. State, 50 Ala. 120. Each case depends largely on its own special circumstances. But we have be- fore us an instance in which the officer actually held out to the defendant the hope and inducement of a lighter sen- tence if he pleaded guilty. And a deter- mination to plead guilty at the trial, thus induced, would naturally lead to an im- mediate disclosure of guilt." And the court held it an unimportant circumstance that the advice of the officer was given at the request of the prisoner, instead of be- ing volunteered. A voluntary confession obtained by artifice is admissible. State V. Brooks, 92 Mo. 542 ; Heldt v. State, 20 Neb. 492. So, if made in response to a simple request by the officer in charge of the person. Boss v. State, 67 Md. 286. Statements made to the grand jury as in- dividuals in the jnry room are admissible. State t. Coffee, 56 Conn. 399. But not those made to a coroner by an ignorant for- eigner, without counsel or knowledge of his rights. People ». Mondon, 103 N. Y. 211. The rule does not cover statements of facts not involving guilt, but which in connection with other facts may tend to show it. People i'. Le Roy, 65 Cal. 618. 1 State V. Guild, 10 N. J. 163 j s. c. 18 Am. Dec. 404; Commonwealth ». Har- man, 4 Pa. St. 269 ; State ». Vaigneur, 6 Rich. 391 ; Rex v. Cooper, 5 C. & P. 535 ; Rex v. Howes, 6 C. & P. 404 ; Rex V. Richards, 5 C. & P. 818 ; Thompson «. Commonwealth, 20 Gratt. 724. 2 See State v. Roberts, 1 Dev. 259; 384 CONSTITUTIONAL LIMITATIONS. [OH. X. Before prisoners were allowed the benefit of assistance from counsel on trials for high crimes, it was customary for them to make such statements as they saw fit concerning the charge against them, during the progress of the trial, or after the evi- dence for the prosecution was put in ; and upon these statements the prosecuting officer or the court would sonietimes ask ques- tions, which the accused might answer or not at his option. And although this practice has now become obsolete, yet if the accused in any case should manage or assist in his own defence, and should claim the right of addressing the jury, it would be difiicult to confine him to " the record " as the counsel may be confined in his argument. A disposition has been manifested of late to allow the accused to give evidence in his own behalf ; and statutes to that effect are in existence in some of the States, the operation of which is believed to have been generally satisfactory.^ These statutes, however, cannot be so construed as to authorize com- pulsory process against an accused to compel him to disclose more than he chooses ; they do not so far change the old system as to establish an inquisitorial process for obtaining evidence ; they confer a privilege, which the defendant may use at his option. If he does not choose to avail himself of it, unfavorable inferences are not to be drawn to his prejudice from that circum- stance ; 2 and, if he does testify, he is at liberty to stop at any Rex V. Cooper, 5 C. & P. 535; Thompson recent case of State u. Cleaves, 59 Me. V. Commonwealth, 20 Gratt. 724 ; State 298 j s. c. 8 Am. Eep. 422. The judge V. Lowhorne, 66 N. C. 538 ; Thompson v. below had instructed the jury that the State, 19 Tex. App. 593 ; Coffee v. State, fact that the defendant did not go upon 6 Sou. Bep. 493 (Fla.). Before the con- the stand to testify was a proper matter fession can be received, it must be shown to be taken into consideration by them by the prosecution that it was voluntary, in determining the question of her guilt State V. Garvey, 28 La. Ann. 955 ; s. c. 26 or innocence. This instruction was sus- Am. Rep. 123. Compare Hopt v. Utah, tained. Appletm, Ch. J. " It has been 110 U. S. 574. _ urged that this view of the law places 1 See American Law Register, Vol. V. the prisoner In an embarrassed condition. N. 8. pp. 129, 705 ; Euloff v. People, 45 Not so. The embarrassment of the pris- N. Y. 213. As such statutes do not com- oner, if embarrassed, is the result of his pel, even morally, a defendant to testify, own previous misconduct, not of the law. they are valid. People v. Courtney, 94 If innocent, he will regard the privilege N. Y. 490. In Tennessee, the prisoner's of testifying as a boon justly conceded, statement is not, in a legal sense, testi- If guilty, it is optional with the accused mony, but the jury may nevertheless be- to testify or not, and he cannot complain lieve and act upon it. Wilson v. State, 8 of the election he may make. If he does Heisk. 342. not avail himself of the privilege of con- 2 People II. Tyler, .36 Cal. 522 j State tradiction or explanation, it is his fault V. Cameron, 40 Vt. 555. For a case rest- if by his own misconduct or crime he has ing upon an analogous principle, see Came placed himself in such a situation that V. Litchfield, 2 Mich. 340. A different he prefers any inferences which may be view would seem to be taken in Maine, drawn from his refusal to testify, to those See State v. Bartlett, 55 Me. 200. The which must be drawn from his testimony, views of the court are thus stated in the if truly delivered. The instruction given CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 385 point he chooses, and it must be left to the jury to give a state- ment, which he declines to make a full one, such weight as, under was correct, and in entire accordance with'the conclusions to which, after mar ture deliberation, we have arrived. State V. Bartlett, 66 Me. 200 ; State v. Lawrence, 57 Me. 375." In People v. Tyler, 36 Cal. 622, 529, Sawyer, Ch. J., expresses the contrary view as follows : " At the trial, by his plea of not guilty, the party charged denies tiie charge against him. This is itself a, positive act of denial, and puts upon the people the burden of affirmatively prov- ing the offence alleged against him. When he has once raised this issue by his plea of not guilty, the law says he shall thencefortli be deemed innocent till he is proved to be guilty ; and both the common law and the statute give him the benefit of any reasonable doubt arising on the evidence. Now, if at the trial, when for all t)ie purposes of the trial the burden is on the people to prove the of- fence charged by affirmative evidence, and tlie defendant is entitled to rest upon his plea of not guilty, an inference of guilt could legally be drawn from his de- clining to go upon the stand as a witness, and again deny the charge against him in the form of testimony, he would practi- cally if not theoretically, by his act de- clining to exercise his privilege, furnish evidence of his guilt that might turn the scale and convict him. In this mode he 'would indirectly and practically be de- prived of the option which the law gives him, and of the benefit of the provision of the law and the Constitution, which say in substance that he shall not be com- pelled to criminate himself. If the infer- ence in question could be legally drawn, the very act of exercising his option, as to going upon the stand as a witness, which he is necessarily compelled by tj)e adoption of the statute to exercise one way or the other, would be, at least to the extent of the weight given by the jury to the inference arising from his declining to testify, a crimination of himself. Wliat- ever the ordinary rule of evidence with reference to inferences to be drawn from the failure of parties to produce evidence that must be in their power to give, we are satisfied that the defendant, with re- spect to exercising his privilege under the provisions of the act in question, is enti- tled to rest in silence and security upon his plea of not guilty, and that no infer- ence of guilt can be properly drawn against him from his declining to avail himself of the privilege conferred upon him to testify in his own behalf ; that to permit such an inference would be to vio- late the principles and the spirit of the Constitution and the statute, and defeat rather than promote the object designed to be accomplished by the innovation in question." See also Commonwealth v. Bonner, .97 Mass. 587 ; Commonwealth ». Morgan, 107 Mass. 109 ; Commonwealth V. Nichols, 114 Mass. 285j s. c. 19 Am. Bep. 846; Commonwealth v. Scott, 123 Mass. 239 ; B. c. 25 Am. Bep. 87 ; Bird v. State, 50 Ga. 585. In New York and Ohio, by statute, unfavorable inferences are not allowed to be drawn from the fact of the defendant not offering himself as a witness. See Brandon v. People, 42 N. Y. 265; Connors v. People, 50 N. Y. 240; Stover V. People, 56 N. Y. 315 ; Calkins V. State, 18 Ohio St. 366. In Devries v. Phillips, 63 N. C. 53, the Supreme Court of North Carolina held it not admissible for counsel to comment to the jury on the fact that the opposite party did not come forward to be sworn as a witness as the statute permitted. In Michigan the wife of an accused party may be sworn as a witness with his as- sent ; but it has been held that his failure to call her was not to subject him to in- ferences of guilt, even though the case was such that, if his defence was true, his wife must have been cognizant of the facts. Knowles v. People, 15 Mich. 408. When a defendant in a criminal case takes the stand in his own behalf, he is subject tp impeachment like other wit- nesses. Fletcher v. State, 49 Ind. 124; s. c. 19 Am. Eep. 673 ; Mershon v. State, 51 Ind. 14; State v. Beal, 68 Ind. 845; Morrison v. State, 76 Ind. 335 ; Common- wealth V. Bonner, 97 Mass. 587 ; Com- monwealth V. Gallagher, 126 Mass. 54; State V. Hardin, 46 Iowa, 623 ; s. o. 26 Am. Rep. 174 ; Gifford e. People, 87 111. 211 . As to the extent to which a prisoner may be cross-examined, see Hanoff v. State, 37 Ohio St. 178 ; People v. Noelke, 25 336 CONSTITUTIONAL LIMITATIONS. [CH. X, the ciFCumstances, they think it entitled to ; ^ otherwise the stat- ute must have set aside and overruled the constitutional maxim which protects an accused party against being compelled to testify against himself, and the statutory privilege becomes a snare and a danger.* 94 N. T. 137 ; State v. Clinton, 67 Mo. 380 ; State v. Saunders, 14 Oreg. 300 ; Peo- ple V. O'Brien, 66 Cal. 602. On the whole subject of the accused as witness, see Crim. Law Mag. 823. 1 In State v. Ober, 52 N. H. 459 ; b. c, 13 Am. Bep. 88, the defendant was put on trial for an illegal sale of liquors ; and having offered himself as a witness, was asked on cross-examination a question directly relating to the sale. He declined to answer, on the ground that it might tend to criminate him. Being convicted, it was alleged for error that the court suffered the prosecuting officer to com- ment on this refusal to the jury. The Supreme Court held this no error. This ruling is in entire accord with the prac- tice which has prevailed without question in Michigan, and which has always as- sumed that the right of comment, where the party makes himself his own witness, and then refuses to answer proper ques- tions, was as clear as the right to exemp- tion from unfavorable comment when he abstains from asserting his statutory privilege. The case of Connors v. People, 50 N. Y. 240, is different. There the defendant, having taken the stand as a witness, ob- jected to answer a question ; but was di- rected by the court to do so, and obeyed the direction. This was held no error, because he had waived his privilege. If the defendant had persisted in refusing, we are not advised what action the court would have deemed it proper to take, and it is easy to conceive of serious em- barrassments in such a case. Under the Michigan practice, when the court had decided the question to be a proper one, it would have been left to the defendant to answer or not at his option, but if he failed to answer what seemed to the jury a proper inquiry, it would be thought sur- prising if they gave his imperfect state- ment much credence. On this point see further State v. Wentworth, 65 Me. 234 ; 8. 0. 20 Am. Hep. 688; State v. Witham, 72 Me. 531 As to extent to which comment may be made upon the defendant's testimony or his failure to make it full, see Heldt V. State, 20 Neb. 492; Watt o. People, 126 111.9; State ». Graves,.95 Mo. 610; State V. Ward, 17 Atl. Kep. 488 ( Vt.). ' The statute of Michigan ot 1861, p. 169, removed the common-law disabilities of parties to testify, and added, " Nothing in this act shall be construed as giving the right to compel a defendant in crim- inal cases to testify ; but any such de- fendant shall be at liberty to make a statement to the court or jury, and may be cross-examined on any such state- ment." It has been held that this state- ment should not be under oath. People V. Thomas, 9 Mich. 314. That its pur- pose was to give every person on trial for crime an opportunity to make full ex- planation to the jury, in respect to the circumstances given in evidence which are supposed to have a bearing against him. Annis v. People, 13 Mich. 511. That the statement is evidence in the case, to which the jury can attach such weight as they think it entitled to. Maher V. People, 10 Mich. 212. That the court has no right to instruct the jury that, when it conflicts with the testimony of an. unimpeached witness, they must believe the latter in preference. Durant v. Peo- ple, 13 Mich. 351, And that the prisoner while on the stand, is entitled to the assistance of counsel in directing his at- tention to any branch of the charge, that he may make explanations concerning it if he desires. Annis v. People, 13 Mich. 511. The prisoner does not cense to be a defendant by becoming a witness, nor forfeit rights by accepting a privilege. In People v. Thomas, 9 Mich. 321, Camp- belt, J., in speaking of the right which the statute gives to cross-examine a defend- ant who has made his statement, says : " And while his constitutional right of declining to answer questions cannot be removed, yet a refusal by a party to an- swer any fair question, not going outside of what he has offered to explain, would CH.. X.] CONSTITUTIONAL PKOTECTIONS, ETC. 387 The testimony for the people in criminal cases can only, as a general rule, be given by witnesses who are present in court.^ The defendant is entitled to be confronted with the witnesses against him ; ^ and if any of them be absent from the Common- wealth, so that their attendance cannot be compelled, or if they be dead, or have become incapacitated to give evidence, there is no mode by which theii" statements against the prisoner can be used for his conviction.^ The exceptions to this rule are of cases which are excluded from its reasons by their peculiar circum- stances ; but they are far from numerous. If the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there were a former trial on which he was sworn, it seems allow- able to make use of his deposition, or of the minutes of his ex- amination, if the witness has since deceased, or is insane, or isick and unable to testify, or has been summoned but appears to have been kept away by the opposite party.* So, also, if a person is have its proper weight with the jury." See Commonwealth ». Mullen, 97 Mass. 647 ; Commonwealth v. Curtis, 97 Mass. 574 ; Commonwealth v. Morgan, 107 Mass. 199. In Florida under a similar statute the prisoner may make his state- ment even after the evidence is closed. Higginbotham v. State, 19 Fla. 667. 1 State V. Thomas, 64 N. C. 74 ; Good- man V. State, Meigs, 197; Jackson v. Commonwealth, 19 Gratt. 656. See Skagga V. State, 108 Ind. 53. By the old common law, a party accused of felony -was not allowed to call witnesses to contradict the evidence for the Crown ; and this seems to have heenon some idea tliat it would he derogatory to the royal dignity to permit it. Afterwards, when tliey were permitted to be called, they maile their statements without oath ; .ind it vvas not uncommon for both the prose- cution and the court to comment upon their testimony as of little weight because unsworn. It was not until Queen Anne's time that they were put under oath. The rule that the prisoner shall be con- fronted with the witnesses against him does not preclude such documentary evi- dence to establish collateral facts as would be admissible under the rules of the com- mon law in other cases. United States v. Benner, Baldw. 234; United States v. Little, 2 Wash. C. C. 159 ; United States v. Ortega, 4 Wash. C.C. 531 ; People v. Jones, 24 Mich. 215. But the corpus delicti — e. g. the fact of marriage in an indictment for bigamy — cannot be proved by certi- ficates. People V. Lambert, 6 Mich. 349. Compare Patterson v. State, 17 Tex. App. 102. 3 Bell V. State, 2 Tex. App. 216; s. c. 28 Am. Eep. 4"29. It has been held coin- pelent, even in a criminal case, to make the certificate of the proper official accountant prima facie evidence of an official delinquency in the tax-collector. Johns V. State, 55 Md. 350. It is not competent for the legislaturfe- to make reputation evidence against an accused of a public offence, — e. g. of keeping a place for the sale of liquors, — which the jury are bound to follow. State V. fieswiek, 13 R. I. 211 ; contra, State v. Thomas, 47 Conn. 546; o. c. 36 Am. Eep. 98. It may be made sufficient evi- dence, provided the jury, while free to convict upon it, are not hound to do so. State V. Wilson, 15 R. L 180. 8 People V. Howard, 50 Mich. 239. But a statute may give the prisoner the right to take depositions out of the State upon condition that the State shall have the like right. Butler v. State, 07 Ind. 378. 4 1 Greenl. Ev. §§ 163-166; Bishop, Cr. Pro. §§ 520-527 ; Whart. Or. Law, § 667 ; 2 Phil. Ev. by Cowen, Hill, and Edwards, 217, 229; Beets v. Slate, Meigs, 108 ; Kendricks v. State, 10 Humph. 479; 388 CONSTITUTIONAL LIMITATIONS. [CH.. X. on trial for homicide, the declarations of the party whom he is charged with having killed, if made under the solemnity of a conviction that he was at the point of death,: and relating to matters of fact concerning the homicide, which passed under his own observation, may be given in evidence against the accused ; the condition of the. party who made them being such that every motive to falsehood must be supposed to have been silenced, and the mind to be impelled by the most .powerful considerations to tell the truth.^ Not that such evidence is of very conclusive character ; it is not always easy for tho hearer to determine how much of the declaration related to what was seen and positively known, and how much was surmise and suspicion only ; but it is admissible from the necessity of the case, and the jury must judge of the weight to be attached to it. In cases of felony, where the prisoner's life or liberty is in peril, he has the right to be present, and must be present, during the whole of the trial, and until the final judgment. If he be absent, either in prison or by escape, there is a want of jurisdic- tion over the person, and the court cannot proceed with the trial, or receive the verdict, or pronounce the final judgment.* But misdemeanors may be tried in the absence of the accused. United States v. McComb, 5 McLean, 286 ; Summons v. State, 5 Ohio St. 325; Pope V. State, 22 Ark. 371; Brown v. Com- monvrealth, 73 Fa. St. 321; Johnson b. State, 1 Tex. App. 833 ; O'Brien u. Com- monwealth, 6 Bush, 563; Commonwealth V. Richards, 18 Pick. 434 ; People v. Mur- phy, 45 Cal. 137 ; People v. Devine, 46 Cal. 45; Davis i>. State, 17 Ala. 354; Marler v. State, 67 Ala. 55; State u. Johnson, 12 Nev, 121 ; State v. Hooker, 17 Vt. 658 ; State v. Elliott, 90 Mo. 350 ; Hair ». State, 16 Neb. 601 ; State v. Fitz- gerald, 63 Iowa, 268. Compare Puryear V. State, 63 Ga. 692 ; State v. Campbell, 1 Rich. 124. That the legislature may make the notes of the official stenog- rapher evidence in a subsequent trial, see State v. Frederic, 69 Me. 400 ; s. c. 3 Am. Cr. R. 78. See People o. Sligh, 48 Mich. 54. Whether evidence that tlie witness cannot be found after diligent inquiry, or is out of the jurisdiction, would be sufficient to let in proof of his former testimony, see Bui. N. P. 239, 242; Rex I). Hagan, 8 C. & P. 167; Sills v. Brown, 9 C. & P. 601 ; People v. Chung Ah Chue, 57 Cal. 567. Evidence of a witness at a former trial, alive but out of the State, is inadmissible. Owens v. State, 63 Miss. 450. 1 1 Greenl. Ev. § 156 ; 1 Phil. Ev. by Cowen, Hill, and Edwards, 285-289; Whart. Cr. Law, §§ 669-682; Donnelly v. State, 26 N. J. 463 ; Anthony v. State, Meigs, 265; Hill's Case, 2 Gratt. 594; State V. Freeman, 1 Speers, 57 ; State v. Brunette, 13 La. Ann. 45; Dunn v. State, 2 Ark. 229 ; Mose v. State, 36 Ala. 421 ; Brown ». State, 32 Miss. 433 ; Whit- ley V. State, 38 Ga. 70 ; State v. Quick, 15 Rich. 158 ; Jackson v. Commonwealth, 19 Gratt. 656 ; State r. Oliver, 2 Houst. 585; People v. Simpson, 48 Mich. 474; State V. Saunders, 14 Oreg. .100 ; State ». Vansant, 80 Mo. 67. This whole subject was largely considered in Morgan v. State, 31 Ind. 193; State k. Framburg, 40 Iowa, 555. 2 See Andrews v. State, 2 Sneed, 550 ; Jacobs V. Cone, 5 S. & R. 335 ; Witt v State, 5 Cold. 11 ; State v. Alman, 64 ' N. C. 364 ; Gladden v. State, 12 Fla. 577 ; Maurer ; . People, 43 N. Y. 1 ; note to Winchell b. State, 7 Cow. 525 ; Hopt v. Utah, 110 U. S. 574; Smith v. People, 8 Col. 457 ; State ». Kelly, 97 N. C. 404. In capital cases the accused stands upon all OH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 389 The Traverse Jury. Accusations of criminal conduct are tried at the common law by jury ; i and wherever the right to this trial is guaranteed by the constitution without qualification or restriction, it must be understood as retained in all those cases which were triable by jury, at the common law,^ and with all the common-law inci- his rights, and waives nothing. Nomaque V. People, BreeSe, 145; Dempsey o. Peo- ple, 47 111. 325; People v. McKay, 18 Johns. 217 ; Burley v. State, 1 Neb. 385. The court cannot make an order chang- ing the venue in a criminal case in the absence of and without notice to the de- fendant. Ex parte Bryan, 44 Ala. 404. Nor in the course of tlie trial allow evi- dence to' be given to the jury in his ab- sence, even though it be that of a witness which had been previously reduced to writing. Jackson v. Commonwealth, 19 Gratt. 656 ; Wade v. State; 12 Ga. 25. See People v. Bragle, 88 N. Y. 585. And in a capital case the record must a£Srmar lively show the presence of the accused at the trial, and when the verdict is re- ceived and sentence pronounced. Dough- erty B. (Commonwealth, 69 Pa. St. 286. As to right to be present, at a view of the Jocut m quo, see People v. Lowrey, 70 Cal. 193; State v. Congdon, 14 R. I. 458; Schular v. State, 105 Ind. 289 ; at argu- , ment of motion for a new trial : People V. Ormsby, 48 Mich. 494 ; State v. Jefcoat, 20 S. C. 383 ; Bond o. Com., 83 Va. 581 ; when jury come in for further instruc- tions : Shipp V. State, 11 Tex. App. 46 ; Roberts v. State, 111 Ind. 340; State v. Myrick, 38 Kan. 238 ; State b. Jones, 7 S. B. Rep. 296 (S. C). Whether any of the steps in the trial can be taken in the defendant's absence if he is under bail, see Barton o. State, 67 Ga. 653 ; Sahlinger V. People. 102 111. 241; State ». Smith, 90 Mo. 37 ; Gore v. State, 12 S. W. Rep. 564 (Ark.). 1 See in general Thompson and Mer- riam on Juries. It is worthy of note that all that is extant of the legislation of the Plymouth Colony for the first five years, consists of the single regulation, " that all criininal facts, and also all manner of trespasses and debts between man and man, shall be tried by the verdict of twelve honest men, to be impanelled by authority, in form of a jury, upon their oath." 1 Palfrey's New England, 340. ^ Cases of contempt of court were never triable by jury ; and the object of the power would be defeated in many cases if they were. The power to punish' contempts summarily is incident to courts of record. King v. Almon, 8 St. Trials, 53; Respublica v. Oswald, 1 Dall. 319; 8. c. 1 Am. Dec. 246; Mariner v. Dyer, 2 Me. 165; Morrison a. McDonald, 21 Me. 550 ; State v. White, T. U. P. Charl. 136 ; Yates V. Lansing, 9 Johns. 895 ; 8. c. 6 Am. Dec. 290; Sanders v. Metcalf, 1 Tenn. Ch. 419 ; Clark v. People, 1 III. 840; s. o. 12 Am. Dec. 177 ; People «. Wilson, 64 111. 195 ; 8. c. 16 Am. Rep. 528 ; State v. Morrill, 16 Ark. 384 ; Gorham v. Luckett, 6 B. Monr. 638 ; State v. Woodfin, 5 Ired. 199 ; Ex parte Adams, 25 Miss. 883 ; State V. Gopp, 15 N. H. 212; State v. Mathews, 37 N. H. 450; Neel v. State, 9 Ark. 259; State V. Tipton, 1 Blackf. 166; Middle- brook V. State, 43 Conn. 259; Garrigus v. State, 93 Ind. 239 ; Chafee v. Quidnick Co., 13 R. I. 442. This is true of the federal courts. United States v. Hud- son, 7 Cranch, 82 ; United States v. New Bedford Bridge, 1 Wood. & M. 401. See Ex parte Robinson, 19 Wall. 505; Ex parte Terry, 128 U. S. 289. The legisla- ture may designate the cases in which a court may punish summarily. In re Old- ham, 89 N. C. 23; State v. MoClaugherty, 10 S. E. Rep. 407 (W. Va.). Whether justices of the peace may punish con- tempts in the absence of any statute con- ferring the power, will perhaps depend on whether the justice's court is or is not deemed a court of record. See Lining V. Bentham, 2 Bay, 1 ; Re Cooper, 32 Vt. 253; Ex parte Kerrigan, 33 N. J. 345; Rhinehart v. Lance, 43 N. J. 311 ; s. c. 39 Am. Rep. 592. But court commis- sioners have no such power. In re Rem- ington, 7 Wis. 643 ; Haight v. Lucia, 36 Wis. 855 ; Ex parte Perkins, 29 Fed. Rep 390 CONSTITUTIONAL LIMITATIONS. [CH. X. dents to a jury trial, so far, at least, as they can be regarded as tending to the protection of the accused.^ A petit, petty, or traverse jury is a body of twelve men, who are sworn to try the facts of a case, as they are presented in the evidence placed before them. Any less than this number of twelve would not be a common-law jury, and not such a jury as the Constitution guarantees to accused parties, when a less number is not allowed in express terms ; and the necessity of a full panel could not be waived — at least in case of felony — even by consent.^ The infirmity in case of a trial by jury of less than 900 : nor notaries ; Burtt v. Pyle, 89 Ind. 898; but see Dogge v. State, 21 Keb. 272. Nor can the legislature confer it upon municipal councils. Whitcomb's Case, 120 Mass. 118. As the courts in punishing contempts are dealing with cases which concern their own authority and dignity, and which are likely to suggest, if not to excite, personal feelings and animosities, the case shouUl be plain before they should assume the authority. Bachelder ». Moore, 42 Cal. 415. See Storey v. People, 79 III. 45 ; HoUingsworth o. Du- ane. Wall. C. C. 77 ; Ex parte Bradley, 7 Wall. 3B4. If the contempt is in the presence of the court, it may be punislied without notice or opportunity for defence. Ex parte Terry, 128 U. S. 289. See State V. Gibson, 10 S. E. Rep. 58 (W. Va.). A libellous publication as to a pending cause may be punished as a contempt. Cooper i;. People, 22Pac. Rep. 790 (Col.). Charges of vagrancy and disorderly conduct wer^ never triable by jury. See full review hy Atvey, 3., in State o. Glenn, 54 Md. 572. Also State o. Anderson, 40 N. J. 224. Petty offences need not be so tried. Ex parte Wooten, 62 Miss. 174; Inwood V. State, 42 Ohio St. 186; Marx «. Milstead, 9 S. B. Rep. 617 (Va). But one may not be imprisoned for two years as an habitual drunkard upon a chamber order. , State v. Ryan, 70 Wis. 676. 1 See note to p. 504 post. A citizen not in the land or naval service, or in the militia in actual service, cannot be tried by court-martial or military commission, on a charge of discouraging volunteer enlistments or resisting a military con- scription. In re Kemp, 16 Wis. 359. See • Ex parte Milligan, 4 Wall. 2. The con- stitutional right of trial by jury extends to newly created offences. Plimpton v. Somerset, 33 Vt. 283; State v. Peterson, 41 Vt. 604. Contra, Tims v. State, 26 Ala. 165 [case of an inferior offence]. But not to offences against city by-laws. McGear V. Woodruff, 33 N. J. 213. Ex parte Schmidt, 24 S. C. 363; Wong v. Astoria, 18 Oreg. 538; Liebcrman v. State, 42 N. W. Rep. 419 (Neb.); Mankato v. Ar- nold, 36 Minn. 62. Otlierwise if the of- fence is a crime. In re Rulfs, 30 Kan. 758; Creston v. Nye, 74 Iowa, 369. A provision in an excise law, authoiizing the excise board to revoke licenses, is not void as violating the constitutional right of jury trial. People v. Board of Com- missioners, 59 N. Y. 92. See LaCroix v. Co. Com'rs, 50 Conn. 321. 2 Work V. State, 2 Ohio St. 296; Can- cemi V. People, 18 N. Y. 128 ; Brown v. State, 8 Blackf . 561 ; "2 Lead. Cr. Cas. 337 ; Hill V. People, 16 Mich. 351. And see State V. Cox, 3 Eng. 436 ; Murphy v. Com- monwealth, 1 Met. (Ky.) 865; Tyzee v. Commonwealth, 2 Met. (Ky.) 1 ; State v. Mansfield, 41 Mo. 470; Brown v. State, 16 Ind. 496 ; Opinions of Judges, 41 N. H. 5oO ; Lincoln v. Smith, 27 Vt. 328 ; Dow- ling's Case, 13 Miss. 664 ; Tillman v. Arlles, 13 Miss. 373; Vaughan v. Seade, 30 Mo. 600; Kleinschmidt u. Dnmphy, 1 Mont. 118; Allen v. State, 54 Ind. 461; State v. Everett, 14 Minn. 447; State B. Lockwood, 43 Wis. 403 ; State v. Davis, 66 Mo. 484 ; Williams ». State, 12 Ohio St. 622 ; Allen v. State, 54 Ind. 461 ; Swart V. Kimball, 43 Micli. 443; Mays V. Com., 82 Va. 550; Harris v. People, 128 111. 585 ; State v. Stewart, 89 N. 0. 568. In Commonwealth ». Dailey, 12 Gush. 80, it was held that, in a case of misdemeanor, the consent of the defend- ant that a verdict might be received from eleven jurors was binding upon him, and CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 391 twelve, by consent, would be that the tribunal would be one un- known to the law, created by mere voluntary act of the parties i and it would in effect be an attempt to submit to a species of arbitration the question whether tlie accused has been guilty of an offence against the State. But in those cases which formerly were not triable by jury, if the legislature provide for such a trial now, they may doubtless create for the purpose a statutory tri- bunal, composed of any number of persons, and no question of constitutional power or right could arise. Many of the incidents of a common-law trial by jury are essen- tial elements of the right. The jury must be indifferent between the prisoner and the Commonwealth ; and to secure impartiality challenges are allowed, not only for cause,i but also peremptory without assigning cause. The jury must als,o be summoned from the vicinage where the crime is supposed to have been com- mitted ; 2 and the accused will thus have the benefit on his trial the verdict was valid. See also State v. Borowsky, 11 Nev. 119; Murphy v. Com- monwealth, 1 Met. (Ky.) 365; Connelly V. State, 60 Ala. 89; s. c. 31 Am. Rep. 34; State v. Sackett, 39 Minn. 69. No distinction is made in the last case between felony and misdemeanor in this regard. In Iowa the right to jury trial is regarded as a personal privilege which may be waived. State v. Poison, 29 Iowa, 138; State v. Kaufman, 61 Iowa, 678; 8. c. 33 Am. Rep. 148. But not in case of homicide. State v. Carman, 63 Iowa, 130. And in Connecticut and Ohio, under statutes permitting a defendant in a criminal case to elect to be tried by the court, his election is held to bind him. State V. Worden, 46 Conn. 349; s. c. 33 Am. Rep. 27 ; Dillingham v. State, 6 Ohio St. 280. Such a statute is valid ; Ed- wards a. State, 45 N. J. L. 419 ; except as to a capital case. Murphy v. State, 97 Ind. 679. In Hill v. People, 16 Mich. 356, it was decided that if one of the jurors called was an alien, the defendant did not waive the objection by failing to challenge him, if he was not aware of the disqualification; and if the court refused to set aside the verdict on affidavits show- ing these facts, the judgment upon it would be reversed on error. The case of State K. Quarrel, 2 Bay, 150, is contra. The case of State v. Stone, 3 111. 326, in which it was held competent for the court, even in a capital case, to strike off a jury- man after he was sworn, because of alienage, affords some support for Hill v. People. 1 Inability to. read and write may be made good cause for challenge. McCamp- bell 0. State, 9 Tex. App. 124; s. o. 35 Am. Rep. 726. But not inability to un- derstand English, in New Mexico, in the absence of statute. Terr. v. Romine, 2 New Mexico, 114. See, on the subject of challenges for Opinion formed, Hayes v. Missouri, 120 U. S. 68 ; Spies v. Illinois, 123 U. S. 131 ; Hopt v. Utah, 120 U. S. 480; Palmer v. State, 42 Ohio St. 596; State*. Munchrath, 43 N. W. Rep. 11 (Iowa). ^ Offences against the United States are to be tried in the district, and those against the State in the county in which they are charged to have been committed : Swart V. Kimball, 43 Mich. 443 ; but courts are generally empowered, on the appli- cation of an accused party, to order a change of venue, where for any reason a fair and impartial tria,l cannot be had in the locality, See Hudson v. State, 3 Cold, 355 ; Rowan v. State, 30 Wis. 129 ; State 0. Mooney, 10 Iowa, 507; State v. Read, 49 Iowa, 85 ; Wayrick v. People, 89 111. 90 ; Manly v. State, 52 Ind. 215 ; Gut v. State, 9 VTall. 35 ; State v. Albee, 61 N. H. 428. It has been held incompetent to order such a change of venue on the application of the prosecution. Kirk v. State, 1 Cold. 344. See also Wheeler v. State, 24 Wis. 62; Osbom v. State, 24 Ark. 629. And in another case in Ten- nessee it was decided tliat a statute which 392 CONSTITUTIONAL LIMITATIONS. [CH. X. of his owji good character and standing with his neighbors, if these he has preserved ; and also of such knowledge as the jury may possess of the witnesses who may give evidence against him. He will also be able with more certainty to secure the attendance of his own witnesses. The jury must unanimously concur in the verdict. This is a very old requirement in the English common law, and it has been adhered to, notwithstanding very eminent men have assailed it as unwise and inexpedient.^ And the jurors must be left free to act in accordance with the dictates of their judgment. The final decision upon the facts is to rest with them, and interference by the court with a view to coerce them into a verdict against their convictions is unwarrantable and irregular. A judge is not justified in expressing his conviction to the jury that the defendant is guilty upon the evidence adduced.'^ Still permitted offences committed near the boundary line of two counties to be tried in either was an invasion of the constitu- tional principle stated in the text. Arm- strong V. State, 1 Cold. 838. See also State V. Denton, 6 Cold. 539. Contra, State V. Robinson, 14 Minn. 447 ; Willis V. State, 10 Tex. App. 493. The case of Dana decided by Judge Blatchford, when U. S. District Judge for the southern district of New York, is of interest in this connection. The " New York Sun," of which Mr. Charles A. Dana was editor-in-chief, published an article reflecting upon the public conduct of an official at Washington. This article was claimed to be a libel. The actual offence, if any, was committed in New York ; but a technical publication also took place in Washington, by the sale of papers there. The offended party chose to have his complaint tried summarily by a police justice of the latter city, instead of sub- mitting it to a jury required to be indiffer- ent between tlie parties. A federal com- missioner issued a warrant for Mr. Dana's arrest in New York for transportation to Washington for trial ; but Judge Blatch- ford treated tlie proceeding with little re- spect, and ordered Mr. Dana's discharge. Matter of Dana, 7 Ben. 1. It would have been a singular result of a revolution where one of the grievances complained of was the assertion of a right to send parties abroad for trial, if it should have been found that an editor might be seized anywhere in the Union and transported by a federal officer to every territory into which his paper might find its way, to be tried in each in succession for offences wliich consisted in a single act not actu- ally done in any of them. ^ For the origin of this principle, see Forsyth, Trial by Jury, c. 11. Tlie re- quirement of unanimity does not prevail in Scotland, or on the Continent. Among the eminent men who have not approved it may be mentioned Locke and Jeremy Bentham. See Forsyth, supra; Lieber, Civil Liberty and Self Government, c. 20. 2 A judge who urges his opinion upon the facts to the jury decides tlie cause, while avoiding the responsibility. How often would a jury be found bold enough to declare their opinion in opposition to that of the judge upon the bench, whose words would fall upon their ears with all the weight which experience, learning, and commanding position must always carry with them ? What lawyer would care to sum up his case, if he knew that the judge, whose words would be so much more influential, was to declare in his favor, or would be bold enough to argue the facts to the jury, if he knew the judge was to declare against him? Blackstone has justly remarked that " in settling and adjusting a question of fact, when in- trusted to any single magistrate, partial- ity and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and dis- tinguishing away the remainder." 3 31. Com. 380. These are evils which jury trial is designed to prevent ; but the effort must be vain if the judge la to control by CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 393 less would he be justified in refusing to receive and record tlie verdict of the jury, because of its beiug, in his opinion, rendered in favor of the prisoner when it ought not to have been. He discharges his duty of giving instructions to the jury when he informs them what in his view the law is which is applicable to the case before them, and what is essential to constitute the offence charged ; and the jury should be left free and unbiased by his opinion to determine for themselves whether the facts in evidence are such as, in the light of the instructions of the judge, make out beyond any reasonable doubt that the 'accused party is guilty as alleged.' How far the jury are to judge of the law as well as of the facts, is a question, a discussion of which we do not , propose to enter upon. If it be their choice to do so, they may return specially what facts they find established by the evidence, and allow the court to apply the law to those facts, and thereby to determine whether the party is guilty or not. But they are not obliged in any case to find a special verdict ; they have a right to apply for themselves the law to the facts, and to express their own opinion, upon the whole evidenccj of the defendant's guilt. Wliere a general verdict is thus given, the jury necessarily determine in their own mind what the law of the case is ; ^ and if their deter- his opinion where the law has given him 497 ; State v. McGinnis, 5 Nev. 337 ; Pit- no power to command. In Lord Camp- took v. O'Niell, 63 Pa. St. 253 ; s. c. 3 Am. bell'sLivesof theCiiancellors, c. 181, the Eep. 544; People v. Gastro, 75 Mich, author justly condemns the practice with 127. some judges in libel cases, of expressing » The independence of the jury, with to the jury their belief in the defendant's respect to the matters of fact in issue be- guilt. On the trial of parties, charged fore them, was settled by Penn's Case, 6 with a libel on the Empress of Russia, Howell's State Trials, 951, and by Bush- Lord Kenyan, sneering at the late Libel el's Case, which grew out of it, and is Act, said : " I am bound by my oath to reported in Vaughan's Reports, 135. A declare my own opinion, and I should for- very full account of these cases is also get my duty were I not to say to you found in Forsyth on Trial by Jury, 397. that it is a gross libel." Upon this Lord See Bushel's Case also in Broom's Const. Campbell remarks : " Mr. Fox's act only Law, 120, and the valuable note thereto, requires the judges to give their opinion Bushel was foreman of the jury which on matters of law in libel cases as in refused to find a verdict of guilty at the other cases. But did any judge ever say, dictation of the court, and he was pun- ' Gentlemen, I am of opinion that this is ished as for contempt of court for his re- a wilful, malicious, and atrocious mur- fusal, but was released on Aa6easfor;jMS. der 1 ' For a considerable time after the ^ " As the main object of the institution act passed, against the unanimous oppo- of the trial by jury is to guard accused Bition of the judges, they almost all spite- persons against all decisions whatsoever fully followed this course. I myself heard by men invested with any permanent one judge say : ' As the legislature re- official authority, it is not only a settled quires me to give my own opinion in the principle that the opinion which the judge present case, I am of opinion that this is delivers has no weight but such as the a diabolically atrocious libel.' " Upon jury choose to give it, but their verdict this subject, see McGuffle v. State, 17 Ga. must besides [unless they see fit to return 394 CONSTITUTIONAL LIMITATIONS. [CH. X. miiiation is favorable to the prisoner, no mode is known to the l^aw in which it can be reviewed or reversed. A writ of error does not lie on behalf of the Commonwealth to reverse an ac- quittal, unless expressly given by statute ; ^ nor can a new trial be granted in such a case ; ^ but neither a writ of error nor a motion for a new trial could remedy an erroneous acquittal by the jury, because, as they do not give reasons for their verdict, the precise grounds for it can never be legally known, and it is always presumable that it was given in favor of the accused be- cause the evidence was not suiificient in degree or satisfactory in character ; and no one is at liberty to allege or assume that they have disregarded the law. Nevertlieless, as it is the duty of the court to charge the jury upon the law applicable to the case, it is still an important ques- tion whether it is the duty of the jury to receive and act upon the law as given to them by the judge, or whether, on the other hand, his opinion is advisory only, so that they are at liberty either to follow it if it accords with their own convictions, or to disregard it if it does not. In one class of cases, that is to say, in criminal prosecutions for libels, it is now very generally provided by the State constitu- tions, or by statute, that the jury shall determine the law and the facts.^ How great a change is made in the common law by these a special finiUng] comprehend tlie whole State ». Robinson, 87 La. Ann. 67.3. Aeon- matter in trial, and decide as well upon stitational provision, saving " tu the de- the fact as upon the point of law that may fendant tlie riglit of appeal " in crimini^ arfse out of it ; in other words, they must cases, does not, by implication, preclude pronounce both on the commission of a tlie legislature from giving to the prose- certain fact, and on tlie reason which cution the same riglit. State v. Tait, 22 miikes such fact to be contrary to law." Iowa, 143. Compare People v. Webb, 38 De Lolme on the Constitution of England, Cal. 467 ; State v. Lee, 10 R. I. 494. c. 1-3. In January, 1735, Zenger, the ^ Pef>ple v. Comstock, 8 Wend. 549; publisher of Zenger's Journal in New State v. Brown, 16 Conn. 54 ; State v, York, was informed against for a libel on Kanouse, 20 N. J. 115; State v. Burns, 3 the governor and other officers of the Tex. 118 ; State w. Taylor, 1 Hawks, 462. king in the province. He was defended ^ ggg Constitutions of Alabama, Con- by Hamilton, a Quaker lawyer from necticut, California, Delaware, Georgia, Philadelphia, who relied upon the truth Kentucky, Maine, Michigan, Missouri, Ne- as a defence. The court excluded evi- braska. New York, Pennsylvania, South dence of the truth as constituting no de- Carolina, Tennessee, and Texas. See fence, but Hamilton appealed to the jury post, p. 512, note. That of Maryland as the judges of the law, and secured makes the jury judges of the law in an acquittal. Street's Council of Re- all criminal cases; and the same rule is vision, 71. established by constitution or statute in 1 See State v. Reynolds, 4 Hay w. 110; some other States. In Holder v. State, United States v. More, 3 Cranch, 174; 6 Ga. 444, the following view was taken People V. Dill, 2 111. 257 ; People v. Royal, of such a statute : " Our penal code de- 2 III. 557 ; Commonwealth v. Cummings, clares, ' On every trial of a crime or of- 3 Cush. 212 ; People v. Corning, 2 N. Y. fence contained in this code, or for any 9 ; State v. Kemp, 17 Wis. 669; compare crime or offence, the jury shall be judges CH. X.] CONSTITUTIONAL TKOTECTIONS, ETC. 395 provisions it is diScult to say, because the rule of the common law was not very clear upon the authorities ; but for that very reason, and because the law of libel was sometimes administered with great harshness, it was certainly proper and highly desirable that a definite and liberal rule should be thus established.^ In all other cases the jury have the clear legal right to return a simple verdict of guilty or not guilty, and in so doing they necessarily decide such questions of law as well as of fact as are involved in the general question of guilt. If their view conduce to an acquittal, their verdict to that effect can neither be reviewed nor set aside. In such a case, therefore, it appears that they pass upon the law as well as the facts, and that their finding is conclusive. If, on the other hand, their view leads them to a verdict of guilty, and it is the opinion of the court that such verdict is against law, the verdict will be set aside and a new trial granted. In such a case, although they have judged of the law, the court sets aside their conclusion as improper and un- of the law and the fact, and shall in every case give a general verdict of guilty or not guilty, and on the acquittal of any defendant or prisoner, no new trial shall on any account be granted by tlie court.' Juries were, at common law, in some sense judges of the law. Having the right of rendering a general verdict, that right involved a judgment on the law as well as the facts, yet not such a judg- ment as necessarily to control the court. The early commentators on the common law, notwithstanding they concede this riglit, yet hold that it is tlie duty of the jury to receive tlie law from the court. Thus Blackstone equivocally writes : 'And sucli public or open verdict may be either general, gaUti/ or not guilty, or spe- cial, setting fortli all the circumstances of the case, and praying the judgment of the court whether, for instance, on the facts stated, it be murder or manslaughter, or no crime at all. This is where they doubt the matter of law, and therefore choose to leave it to the determination of the court, though they have an unquestion- able right of determining upon all the circumstances, and of finding a general verdict if they think proper so to hazard a breach of their oaths,' &c. 4 Bl. Com. 361 ; Co. Lit. 228 o ; 2 Hale, P. C. 313. Our legislature have left no doubt about this matter. The juries in Georgia can find no special verdict at law. They are declared to be judges of the law and the facts, and are required iu every case to give a general verdict of guilty or not guilty : so jealous, and rightfully jealous, were our ancestors of the influence of the State upon the trial of a citizen charged witli crime. We are not called upon in this case to determine the relative strength of the judgment of the court and the jury, upon the law in criminal cases, and shall express no opinion thereon. We only say it is the right and duty of the court to declare the law in criminal cases as well as civil, and that it is at the same time the right of the jury to judge of the law as well as of the facts in criminal cases. I would not be understood as iiolding that it is not the province of the court to give the law of the case distinctly in charge tO' the jury ; it is unquestion- ably its privilege and its duty to instruct them as to what the law is, and officially to direct tlieir finding as to the law, yet at the same time in such way as not to limit the range of their judgment." See also McGuffie v. State, 17 Ga. 497 ; Clem V. State, Sllnd. 480 ; and post, p. 564 et seq. 1 For a condensed history of the strug- gle in England on this subject, see May's Constitutional History, c. 9. See also Lord Campbell's Lives of the Chancellors, c. 178 ; Introduction to Speeches of Lord Erskine, edited by James L. High ; For- syth's Trial by Jury, c. 12. 396 CONSTITUTIONAL LIMITATIONS. [CH. X, warranted. But it is clear that the jury are no more the judges of the law when, they acquit than when they condemn, and the different result in the two cases comes from the merciful maxim of the common law, which will not suffer an accused party to be twice put in jeopardy for the same cause, however erroneous may have been the first acquittal. In theory, therefore, the rule of law would seem to be, that it is the duty of the jury to receive and follow the law as delivered to them by the court ; and such is the clear weight of authority.^ • There are, however, opposing decisious,^ and it is evident that 1 United States v. Battiste, 2 Sum. the power to do) in opposition to the ad- 240 ; Stettinus ». United States, 5 Cranch, vice of the court, they assume a higli re- C. C. 573; United States o. Morris, 1 Curt, sponsibility, and should be very careful 63; United States v. Eiley, 5 Blatch. to see clearly that they are right." Com- 204; United States w. Greathouse, 4 Saw- mon wealth v. Knapp, 10 Pick. 496, cited yer, 459 ; Montgomery v. State, 11 Ohio, with approval in McGowan .,. State, 9 427 ; Kobbins v. State, 8 Ohio St. 131 ; Yerg. 195, and Dale v. State, 10 Yerg. Commonwealth u. Porter, 10 Met. 263; 555. And see Kane w. Commonwealth, Commonwealth v. Anthes, 5 Gray, 185 ; 89 Pa. St. 522 ; s. c. 83 Am. Eep. 787 ; Commonwealth v. Kock, 10 Gray, 4 ; Habersham v. State, 56 Ga. 61 ; s. c. 2 State V. Peace, 1 Jones, 251 ; Handy v. Am. Cr. Rep. 45 ; Hunt v. State, 7 S. E. State, 7 Mo. 607 ; Nels v. State, 2 Tex. Eep. 142 (Ga.). Even where the jury 280; State o. Tally, 23 La. Ann. 677; are judges of the law and favts and in- State V. Tisdale, 6 Sou. Eep. 579 (La.) ; struetions are only advisory, error in the People V. Pine, 2 Barb. 566 ; Carpenter v. charge is prejudicial. State v. Eice, 56 People, 8 Barb. 608 ; People w. Finnigan, Iowa, 481; Hudelson v. State, 94 Ind. 1 Park. C. R. 147; SafEord v. People, 1 ~ Park. C. E. 474; McMath v. State, 55 Ga. 303 ; Hamilton v. People, 29 Mich. 173 ; McGowan ». State, 9 Yerg. 184 ; Pleasant v. State, 13 Ark. 360 ; Montee v. Commonwealth, 3 J. J. Marsh. 132 ; Com- monwealth B. VariTuyl, 1 Met. (Ky.) 1 ; Pierce v. State, 13 N. H. 536 ; People v. Stewart, 7 Cal. 40; Mullinex v. People, 76 111. 211 ; Batre b. State, 18 Ala. 119 ; reviewing previous cases in the same State. " As the jury have the right, and if required by the prisoner are bound to return a general verdict of guilty or not guilty, they must necessarily, in the dis- cbarge of this duty, decide such questions of law as well as of fact as are involved in the general question, and there is no mode in which their opinions upon ques- tions of law can be reviewed by this court or by any other tribunal. But this does not diminish the obligation resting upon the court to explain the law. The instructions of the court in matters of law may safely guide the consciences of the jury, unless they know them to be wrong ; and when the jury undertake to decide the law (as they undoubtedly have 426. Even if there is no dispute, a court cannot direct a conviction. United States V. Taylor, 3 McCrary, 500. ^ See especially State b. Croteau, 23 Vt. 14, where will be found a very full and carefully considered opinion, holding that at the common law the jury are the judges of the law in criminal cases. See also State v. Wilkinson, 2 Vt. 280 ; Doss B. Commonwealth, 1 Gratt. 557 ; State b. Jones, 5 Ala. 666 ; State v. Snow, 18 Me. 346; State b. Allen, 1 McCord, 525; s. c. 10 Am. Dec. 687 ; Armstrong v. State, 4 Blackf . 247 ; Warren b. State, 4 Blackf. 150; Stocking b. State, 7 Ind. 326 ; Lynch B. State, 9 Ind. 541 ; Nelson b. State, 2 Swan, 482; People u. Thayers, 1 Park. C. E. 596 ; People b. Videto, 1 Park. C. R. 608. The subject was largely dis- cussed in People v. Croswell, 3 Johns. Cas. 387. In Virginia, it is said that unless instructions are asked, a court should in general not instruct the jury upon the law ; Dejamette v. Com., 75 Va. 867, and in Maryland it seems to be optional with the court to instruct them. Broil v. State, 46 Md. 866. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 397 the judicial prerogative to direct conclusively upon the law can- not be carried very far or insisted upon with much pertinacity, when the jury have such complete power to disregard it, without the action degenerating into something like mere scolding. Upon this subject the* remarks of Mr. Justice Baldwin, of the Supreme Court of the United States, to a jury assisting him in the trial of a criminal charge, and which are given in the note, seem pecu- liarly dignified and appropriate, and at the same time to embrace about all that can properly be said to a jury on this subject.^ 1 '' In repeating to you what was said on a former occasion' to anotlier jury, that you have the power to decide on the law as well as the facts of this case, and are not bound to find according to our opinion of the law, we feel ourselves con- strained to make some explanations not then deemed necessary, but now called for from the course of the defence. You may find a general vei-dict of guilty or not guilty, as you think proper, or you may find the facts specially, and leave the guilt or innocence of the prisoner to the judgment of the court. If your ver- dict acquit the prisoner, we cannot grant a new trial, however much we may diSer with you as to tlie law which governs the case ; and in this respect a jury are the judges of the law, if they choose to be- come so. Their judgment is final, not because they settle the law, but because they think it not applicable, or do not choose to apply it to the case. " But if a jury find a prisoner guilty against the opinion of the court on tlie law of the case, a new trial will be granted. No court will pronounce a judgment on a prisoner against what they believe to be the law. On an acquittal there is no judgment ; and the court do not act, and cannot judge, there remaining nothing to act upon. " This, then, you will understand to be what is meant by your power to decide on the law; but you will still bear in mind that it is a very old, sound, and valuable maxim in law, that the court answers to questions of law, and the jury to facts. Every day's experience evinces the wisdom of this rule." United States V. Wilson, Baldw. 108. We quote also from an Alabama case: "When the power of juries to find a general verdict, and consequently their right to determine without appeal both law and fact, is ad- mitted, the abstract question whether it is or is not their duty to receive the law from the court becomes rather a question of casuistry or conscience than one of law ; nor can we think that anything is gained in tlie administration of criminal justice by urging the jury to disregard the opinion of the court upon the law of the case. It must, we think, be admitted, that tlie judge is better qualified to ex- pound the law, from his previous train- ing, than the jury ; and in practice, unless he manifests a wanton disregard of tlie rights of the prisoner, — a circumstance whicli rarely happens in tliis age of tlie world and in this country, — his opinion of the law will be received by tlie jury as an authoritative exposition, from their conviction of his superior knowledge of the subject. The right of the jury is doubtless one of inestimable value, espe- cially in those cases where it may he supposed tliat the government has an in- terest in the conviction of tlie criminal ; but in this country, where the govern- ment in all its branches, executive, legis- lative, and judicial, is created by the people, and is in fact their servant, we are unable to perceive why the jury should he invited or urged to exercise this right contrary to their own convic- tions of their capacity to do so, without danger of mistake. It appears to us that it is sufficient that it is admitted that it is their peculiar province to determine facts, intents, and purposes; that it is their right to find a general verdict, and conse- quently that they must determine the law ; and whether in the exercise of this right they will distrust the court as expounders of the law, or whether they will receive the law from the court, must be left to their own discretion un- der the sanction of the oath they have taken." State v. Jones, 6 Ala. 672. But 398 CONSTITUTIONAL LIMITATIONS. [CH. X - One thing more is essential to a proper proteetion of accused parties, and tliat is, tliat one shall not be subject to be twice put in jeopardy upon the same charge. One trial and verdict must, as a general rule, protect him against any subsequent accusation of the same offence,;' whether the verdict be for or against him, and whether the courts are satisfied with the verdict or not. We shall not attempt in tliis place to collect together the great number of judicial decisions bearing upon the question of legal jeopardy, and the exceptions to the general rule above stated ; for these the reader must be referred to the treatises on criminal law, where the subject will be found to be extensively treated. It will be sufficient for our present purpose to indicate very briefly some general principles. as to this case, see Batre v. State, 18 Ala. 119. It cannot be denied that discredit is sometimes brought upon tlie administra- tion of justice by juries acquitting parties who are su£Suiently shown to be guilty, and where, had the trial been by the court, a conviction would have been sure to follow. In such cases it must be sup- posed that the jury have been controlled by their prejudices- or their sympathies. However that may be, it by no means follows that because the machinery of jury trial does not work satisfactorily in every case, we must therefore condemn and abolish the system, or, wliat is still worse, tolerate it, and yet denounce it as being unworthy of public confidence. The remarks of Lord Urskine, the most distinguished jury lawyer known to Eng- lish history, may be quoted as peculiarly a.ppropriate in this connection : " It is of the nature of everything that is great and useful, both In the animate and in- animate world, to be wild and irregular, and we must be content to take them with the alloys which belong- to them, or live without them. . . . Liberty herself, the last and best gift of God to his crea- tures, must be taken just as she is. You. might pare her down into bashful regu- larity, shape her into a perfect model of severe, scrupulous law; but she would then be liberty no longer; and you must be content to die under the lash of this inexorable justice which you have ex- changed- for the banners of freedom." The province of the jury is sometimes invaded by instructions requiring them to adopt, as absolute conclusions of law, those deductions which they are at liberty to draw from a particular state of facts, if they regard them as reasonable : such as that a homicide must be presumed malicious, unless the defendant proves the contrary ; w hicli is a rule contradictory of the results of common observation ; or that evidence of a previous good charac- ter in the defendant ought to be dis regarded, unless the other proof presents a doubtful case ; which would deprive an accused party of his chief protection in many cases of false accusations and con- spiracies. See People v. Garbutt, 17 Mich. 9 ; People v. Lamb, 2 Keyes, 360 j State B. Henry, 5 Jones (N. C.) 66; Har- rington V. State, 19 Otiio St. 269; Silvus V. State, 22 Ohio St. GO; State v. Patter- son, 45 Vt. 308; Eemsen v. People, 43 N. Y. 6; Kistler v. Stale, 54 Ind. 400. Upon the presumption of malice in homi- cide, the reailer is referred to the Review of the Trial of Professor Webster, by Hon. Joel Parker, in the North American Eeview, No. 72, p. 178. See also, upon the functions of judge and jury respec- tively, the cases of Commonwealth v. Wood, 11, Gray, 86; Maher v. People, 10 Mich. 212 ; Commonwealth v. Billings, 97 Mass, 405 ; State v. Patterson, 63 N. C. 520; State v Newton, 4 Nev. 410. ' By the same ofEi'nce is not signified the same eo nomine, but the same crimi- nal act or omission, Hershfield v. State^ 11 Tex. App. 207; "Wilson v. State, 24 Conn. 57 ; State v. Thornton, 37 Mo. .360 ; Holt V. State, 38 Ga. 187 ; Commonwealth V. Hawkins, 11 Bush, 603; People v; Majors, 65 Cal. 138 ; Peoples. Stephens,. 79 Cal. 428; State v. Colgate, 31 Kan. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 899 A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance.^ And a jury is said to be thus charged when they have been impanelled and 8worn.2 The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution ; aud he cannot be de- prived of this bar by a nolle prosequi entered by the prosecuting officer agaimst his will, or by a discharge of the jury and continu- ance of the cause.^ If, however, the court had no jurisdiction of the cause,* or if the indictment was so far defective that no valid judgment could be rendered upon it,* or if by any overruling necessity the jury 611; State v. Mikesell, 70 Iowa, 176; Hurst V. State, 86 Ala. 604 ; Moore v. State, 71 Ala. 307. 1 Commonwealth v. Cook, 6 S. & R. 586 ; State i^. Norvell, 2 Yerg. 24 ; Wil- liams V. Commonwealtli, 2 Gratt. 568; People V. McGowan, 17 Wend. 380; Mounts V. State, 14 Ohio, 295 ; Price ti. State, 19 Ohio, 423 ; Wriglit u. State, 5 Ind. 292 ; State v. Nelson, 26 Ind. 366 ; State V. Spier, 1 Dev. 491 ; State v. Eph- mim, 2 Dev. & Bat. 162 ; Commonwealtli V. Tuck, 20 Pick. .^56 ; People v. Webb, 28 Cal. 467 ; People v. Cook, 10 Mich. 164; State v. Ned, 7 Port. 217; State v. Callendine, 8 Iowa, 288. If a defendant is arraigned before a justice who has jurisdiction, and pleads guilty, and the prosecutor dismisses tire case, lie has been in jeopardy. Boswell v. State, Ml Ind. 47. It cannot be said, however, that a party is in legal jeopardy in a prosecu- tion brouglit about by liis own procure- ment ; arid a former conviction or acquit- tal is consequently no bar to a second indictment, if the former trial was brought abeut by tlie procurement of the defend- ant, and the conviction or acquittal was the result of fraud or collusion on his part. Commonwealth v. Alderman, 4 Mass. 477 ; State v. Little, 1 N. H. 257 ; State V. Lowry, 1 Swan, .35 ; State f. Green, 16 Iowa, 239. Sec also State v. Keed, 26 Conn. 202 ; Bigham v. State, 59 Miss.' 529; State v. Simpson, 28 Minn. 66; McFarland v. State, 68 Wis. 400. And if a jury is called and sworn, and then discharged for the reason that it ia discovered the defendant has not been ar- raigned, this will not constitute a bar. United States v. Eiley, 5 Blatch. 204. In State v. Garvey, 42 Conn. 2.32, it is held that a prosecution iwl. prossed after the jury is sworn is no bar to anew prose- cution, " if the prisoner does not claim a verdict, but waives his right to insist upon it." See Hoffman v. State, 20 Md. 425. 2 McFadden v. Commonwealth, 23 Pa. St. 12 ; Lee v. Stale, 26 Ark. 260 ; s. c. 7 Am. Rep. 611 ; O'Brian v. Commonwealth, 9 Bush, .333; s. c. 15 Am. Rep. 715. The jury must be of competent men. If, after the jury is sworn but before any evidence is taken, an incompetent juror is set aside, there has been no jeopardy. People v. Barker, 60 Mich. 277 ; State v. Pritchard, 16 Nev. 101. Compare Adams r. State, 99 Ind. 244 ; Whitraore v. State, 43 Ark. 271. 3 People V. Barrett, 2 Caines, 304; Commonwealth o. Tuck, 20 Pick. 865; Mounts V. State, 14 Ohio, 295; State v. Connor, 5 Cold. 311 ; State v. Callendine, 8 Iowa, 288 ; Baker v. State, 12 Ohio St. 214«; Grogan v. State, 44 Ala. 9 ; State v. Alman, 64 N. C. 364 ; Nolan v. State, 65 Ga. 521 ; Pizaiio v. State, 20 Tex. App.139. It is otherwise in Vermont. State v. Cham- peau, 53 Vt. 313 ; s. c. 36 Am. Rep. 764. A judge caniiot order discharge in order to try again upon another complaint. Com. V. Hart, 149 Mass. 7. * Commonwealths. Goddard, 18 Mass. 455 ; People v. Tyler, 7 Mich. 161 ; Mon- tross V. State, 61 Miss. 429; State v. Shelly, 98 N. C. 673; Brown v. State, 79 Ga. 324. Acquittal by court-martial is no bar to a prosecution in the criminal courts. State i: Rankin, 4 Cold. 146; United States v. Cashiel, 1 Hughes, 552. 6 Gerard v. People, 4 111. 863; Pritch. 4O0 CONSTITUTIONAL LIMITATIONS. [CH. X are discharged without a verdict,^ which might happen from the sickness or death of the judge holding the court,^ or of a juror,^ or the inability of the jury to agree upon a verdict after reason- able time for deliberation and effort ; * or if the term of the court as fixed by law comes to an end before the trial is finished;^ or the jury are discharged with the consent of the defendant ex- pressed or implied;® or if, after verdict against the accused, it has been set aside on his motion for a new trial, or on writ of error ,7 or the judgment thereon been arrested,^ — in any of these ett V. State, 2 Sneed, 285; People v. Cook, 10 Mich. 164 ; Mount v. Common- wealth, 2 Duv. 93 ; People ». MoNealy, 17 Cal. 333; Kohlheimer v. State, 39 Miss. 548 ; State v. ICason, 20 La. Ann. 48; Black v. State, 36 Ga. 447; Com- monwealth V, Bakeman, 105 Mass. 53; State 0. Ward, 48 Ark. 36; People v. Clark, 67 Cal. 99 ; Garvey's Case, 7 Col. 384. 1 United States v. Perez, 9 Wheat. 579; State v. Ephraim, 2 Dev. & Bat. 166 ; Commonwealth v. Fells, 9 Leigh, 620; People v. Goodwin, 18 Johns. 205; Commonwealth v. Bowden, 9 Mass. 194; Hoffman v. State, 20 Md. 425 j Price i-. State, 36 Miss. 533. In State o. Wise- man, 68 N. C. 20-3, the oflScer in charge of the jury was found to have been convers- ing with them in a way calculated to in- fluence them unfavorably towards the evidence of the prosecution, and it was held that this was such a case of neces- sity as authorized the judge to permit a juror to be withdrawn, and that it did not operate as an acquittal. See also State v.. Washington, 89 N. C. 535. If an indict- ment is nol. prossed&ilex the jury is sworn, because it is found that the person alleged to have been murdered is misnamed, this is no bar to a new indictment which shall give the name correctly. Taylor v. State, 36 Tex. 97. 2 Nugent B. State, 4 Stew. & Port. 72. « Hector ». State, 2 Mo. 166 ; State v. Curtis, 5 Humph. 601; Mahala v. State, 10 Yerg. 532 ; Commonwealth w. Fells, 9 Leigh, 618 ; Doles v. State, 97 Ind/ 656 ; State V. Emery, 59 Vt. 84. * People V. Goodwin, 18 Johns. 187 ; Commonwealth o. Olds, 6 Lit. 140 ; Dob- bins V. State, 14 Ohio St. 493 ; Miller v. State, 8 Ind. 326 ; State v. Walker, 20 Ind. 346; Commonwealth v. Fells, 9 Leigh, 613 ; Winsor v. The Queen, L. R. 1 Q. B. 289; State v. Prince, 63 N. C. 529 ; Moseley v. State, 33 Tex. 671 ; Les- ter V. State, 33 Ga. 329 ; Ex parte, Mc. Laughlin, 41 CaL 211 ; s. c. 10 Am. Rep. 272; People v. Harding, 53 Mich. 481; Conklin v. State, 41 N. W. Rep. 788 (Neb.) ; Powell v. State, 17 Tex. App. 345; State v. Sutfin, 22 W. Va. 771. 6 State V. Brooks, 3 Humph. 70 ; State ti. Battle, 7 Ala. 259 ; Mahala v. State,, 10 Yerg. 532; State v. Spier, 1 Dev. 491; Wright V. State, 5 Ind. 290. See Whitten V. State, 61 Miss. 717. 6 State I'. Slack, 6 Ala. 676 ; Elijah v. State, 1 Humph. 103 ; Commonwealth v. Stowell, 9 Met. 572 ; People v. Curtis, 76 Cal. 57 ; People ». White, 68 Mich. 648; State V. Parker, 66 Iowa, 686. As to the effect of jury's separation by defendant's consent, see State t'. Ward, 48 Ark. 36 ; Hilands v. Com., Ill Pa. St. 1. I Kendall v. State, 65 Ala. 492 ; State V. Blaisdell, 69 N. H. 328; Gannon v. People, 127 111. 507 ; State v. Breclit, 42 N. W. Rep. 602 (Minn.) ; People v. Har- disson, 61 Cal. 378. See Com. v. Down- ing, 22 N. B. Rep. 912 (Mass.). And it seems, if the verdict is so defective that no judgment can be rendered upon it, it may be set asidd even against the defend- ant's objection, and a new trial had. State V. Redman, 17 Iowa, 329. ^ Casborus v. People, 13 Johns. 351 ; State V. Clark, 69 Iowa, 196. But where the indictment was good, and the judg- ment was erroneously arrested, the ver- dict was held to be a bar. State v. Nor- vell, 2 Yerg. 24. See People v. Webb, 28 Cal. 467. So if the error was in the judgment and not in the prior proceed- ings, if the judgment is reversed, the prisoner must be discharged. See potf, p. 403. But it is competent for the legis- lature to provide that on reversing the erroneous j.adgment in such case, the CH. X.] -CONSTITUTIONAL PROTECTIONS, ETC. 401 cases the accused may again be put upon trial upon the same facts before charged against him, and the proceedings had will con- stitute no protection. But where the legal bar has once attached, the government cannot avoid it by varying the form of the charge in a new accusation : if the first indictment or information were such that the accused might have been convicted under it on proof of the facts by which the second is sought to be sustained, then the jeopardy which attached on tlie first must constitute a protection against a trial on the second.i And if a prisoner is acquitted on some of the counts in an indictment, and convicted on others, and a new trial is obtained on his motion, he can be put upon trial a second time on those counts only on which he was before convicted, and is forever discharged from the others.^ Excessive Fines and Cruel and Unusual Punishments. It is also a constitutional requirement that excessive bail shall not be required, nor cruel and unusual punishments inflicted. Within such bounds as may be prescribed by law, the question what fine shall be imposed is one addressed to the discretion of the court. But it is a discretion to be judicially exercised ; and , there may be cases in which a punishment, though not beyond any limit fixed by statute, is nevertheless so clearly excessive as to be erroneous in law.^ A fine should have some reference court, if the prior proceedings are regu- Barnett v. People, 54 III. 331 ; contra, State lar, shall remand the case for the proper v. Behimer, 20 Ohio St. 572. A nolle pro- sentence. McKee v. People, 32 N. Y. 239. sequi on one count of an indictment after It is also competent, by statute, in the a jury is called and sworn, is a bar to a absence of express constitutional prohibi- new indictment for the offence charged tion, to allow an appeal or writ of error to therein. Baker v. State, 12 Ohio St. 214 ; the prosecution, in criminal cases. See Murphy o. State, 41 N. W. Rep. 792 cases p. 394, note 1. (Neb.). See Com. v. Dunster, 145 Mass. 1 State V. Cooper, 13 N. J. 360 ; Com- 101 monwealth u. Roby, 12 Pick. 504 ; Peo- * The subject of cruel and unusual pie u. McGowan, 17 Wend. 386; Price v. punishments was somewhat considered State, 19 Ohio, 423; Leslie v. State, 18 in Barker v. People, 3 Cow. 686, where Ohio St. 395 ; State v. Benham, 7 Conn, the opinion was expressed by Chancellor 414. See Mitchell v. State, 42 Ohio St. Sanford that a forfeiture of fundamental 383; Williams w. Com., 78 Ky. 93; Sims rights — e. g. the right to jury trial — V. State, 5 Sou. Rep. 525 (Miss.). could not be imposed as a punishment, 2 Campbell v. State, 9 Yerg. 333 ; State but that a forfeiture of the right to hold V. Kettle, 2 Tyler, 475 ; Morris v. State, ofiBce might be. But such a forfeiture 8 S. & M. 762; Esmon v. State, 1 Swan, could not be imposed without giving a 14 ; Guenther v. People, 24 N. Y. 100 ; right to trial in the usual mode. Com- State V. Kattleman, 85 Mo. 105 ; State v. monwealth v. Jones, 10 Bush, 725. In Ross, 29 Mo. 39 ; State v. Martin, 30 Wis. Done v. People, 5 Park. 864, the cruel 216; s. c. 11 Am. Rep. 567 ; United States punishments of colonial times, such as V. Davenport, Deady, 264; b. c. 1 Green, burning alive and breaking on the wheel, Cr. R. 429 ; Stuart v. Commonwealth, 28 were enumerated by W. W. Campbell, J., Gratt. 950; Johnson v. State, 29 Ark. 31 ; who was of opinion that they must be 26 402 CONSTITUTIONAL LIMITATIONS. [CH. X. to the party's ability to pay it. By Magna Charta a freeman was not to be amerced for a small fault, but according to the degree of the fault, and for a great crime in proportion to the heinous- ness of it, saving to him his contenement; and after the same maur ner a merchant, saving to him his merchandise. And a villein was to be amerced after the same manner, saving to him his wain- age. The merciful spirit of these provisions addresses itself to the criminal courts of the American States through the provisions of their constitutions. It has been decided by the Supreme Court of Connecticut that it was not competent in the punishment of a common-law offence to inflict fine and imprisonment without limitation. The prece- dent, it was said, cited by counsel contending for the opposite doctrine, of the punishment for a libel upon Lord Chancellor Bacon, was deprived of all force of authority by the circum- stances attending it ; the extravagance of the punishment being clearly referable to the temper of the times. " The common law can never require a fine to the extent of the offender's goods and chattels, or sentence of imprisonment for life. The punishment is both uncertain and unnecessary. It is no more difficult to limit the imprisonment of an atrocious offender to an adequate number of years than to prescribe a limited punishment for minor offences. And when there exists no firmly established practice, and public necessity or convenience does not imperiously demand the principle contended for, it cannot be justified by the common law, as it wants the main ingredients on which that law is founded. Indefinite punishments are fraught with danger, and ought not to be admitted unless the written law should authorize them." 1 It is certainly difficult to determine precisely what is meant by cruel and unusual punishments. Probably any punishment de- clared by statute for an offence which was punishable in the same way at the common law could not be regarded as cruel or unusual in the constitutional sense. And probably any new statutory offence may be punished to the extent and in the mode permit- ted by the common law for offences of similar nature. But those degrading punishments which in any State had become obsolete before its existing constitution was adopted, we think may well be held forbidden by it as cruel and unusual. We may well regarded as " cruel " if not " unusual," of oases in which perpetual imprisonment and therefore as being now forbidden. was awarded at the common law, but, as * Per Hosmer, Ch. J., in State v. Dan- his associates believed, unwarrantably, forth, 3 Conn. 112-116. Peters, J., in the Compare Blydenburg ». Miles, 89 Conn, game case, pp. 122-124, collects a number 484. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 403 doubt the right to establish the whipping-post and the pillory in States where they were never recognized as instruments of pun- ishment, or in States whose constitutions, revised since public opinion Ijad banished them, have forbidden cruel and unusual punishment. In such States the public sentiment must be re- garded as having condemned them as "cruel," and any pun- ishment which if ever employed at all, has become altogether obsolete, must certainly be looked upon as " unusual." ^ A defendant, however, in any case is entitled to have the pre- cise punishment meted out to him which the law provides, and no other. A different punishment cannot be substituted on the ground of its being less in severity. Sentence to transportation for a capital offence would be void ; and as the error in such a case would be in the judgment itself, the prisoner would be en- titled to his discharge, and could not be tried again.^ If, how- ever, the legal punishment consists of two distinct and severable things, — as fine and imprisonment, — the imposition of either is legal, and the defendant cannot be heard to complain that the other was not imposed also.^ The Right to Counsel. Perhaps the privilege most important to the person accused of crime, connected with his trial, is that to be defended by counsel. 1 In New Mexico it has been decided Met. 530 ; Ex parte Lange, 18 Wall. 163 ; that flogging may be made the punishment McDonald v. State, 45 Md. 90. See also for horse-stealing : Garcia v. Territory, 1 Whitebread v. The Queen, 7 Q. B. 582 ; " New Mex. 415; so for wife-beating. Foote Hex v. Fletcher, Russ. & Ry. 68. It is V. State, 59 Md. 264. For the non-pay- competent, however, to provide by stat- nient of fine for unlicensed liquor sell- nte that on setting aside an erroneous ing, street labor may be imposed. Ex sentence the court shall proceed to im- parte Bedell, 20 Mo. App. 125. See further pose the sentence which the la w required, as to unusual punishments. Ex paj-te Wilson w. People, 24 Mich. 410; MoDon- Swann, 96 Mo. 44 ; People v. Haug, 37 N. aid v. State, 46 Md. 90. W. Rep. 21 (Mich.). . » See Kane v. People, 8 Wend. 203. The power in prison keepers to inflict When one has been convicted and sen- corporal punishment for the misconduct tenced to confinement, it is not compe- of convicts cannot be delegated to con- tent, after the period of his sentence has tractors for convict labor or their mana- expired, to detain him longer in pnnish- gers. Cornell v. State, 6 Lea, 624. The ment for misbehavior in prison ; and a keeper of a workhouse may not be author- statute to that effect is unwarranted, ized to inflict such punishment at his dis- Gross v. Rice, 71 Me. 241. The whole cretion. Smith v. State, 8 Lea, 744. A measure of punishment must be imposed jailer may not chain up a prisoner for at once. The judgment cannot be split several hours by the neck so he cannot up. People v. Felker, 61 Mich. 110. Cu- lie or sit. In re Birdsong, 39 Fed. Rep. 599. mutative punishment may be imposed : 2 Bourne v. The King, 7 Ad. & El. 58 ; Lillard v. State, 17 Tex. App. 114 ; State Lowenberg v. People, 27 N. Y. 336 ; Har- v. O'Neil, 58 Vt. 140 ; so may increased tung V. People, 26 N. Y. 167 ; Elliott v. punishment for second offence. Kelly v. People, 13 Mich. 365; Ex parte Page, 49 People, 115 111. 583; Chenowith u.Com., Mo. 291 ; Christian v. Commonwealth, 5 12 S. W. Rep. 585 (Ky.). 404 CONSTITUTIONAL LIMITATIONS. [CH. X. From very early days a class of men who have made the laws of their country their special study, and who have heen accepted for the confidence of the court in their learning and integrity, have been set apart as oiificers of the court, whose special duty it should be to render aid to the parties and the court ^ in the appli- cation of the law to legal controversies. These persons, before entering upon their employment, were to take an oath of fidelity to the courts whose officers they were, and to their clients; 2 and it was their special duty to see that no wrong was done their clients by means of false or prejudiced witnesses, or through the perversion or misapplication of the law by the court. Strangely enough, however, the aid of this profession was denied in the very cases in which it was needed most, and it has cost a long struggle, continuing even into the present century, to rid the English law of one of its most horrible features. In civil causes and on the trial of charges of misdemeanor, the parties were entitled to the aid of counsel in eliciting the facts, and in presenting both the facts and the law to the court and jury; 1 In Commonwealth v. Knapp, 9 Pick. 498, the court denied the application of the defendant that Mr, Eantoul should be assigned as his counsel, because, though admitted to the Common Pleas, lie was not yet an attorney of the Su- preme Court, and that court, conse- quently, had not the usual control over him ; and, besides, counsel was to give aid to the court as well as to the prisoner, and therefore it was proper that a person of more legal experience should be as- signed. 2 " Every countor is chargeable by the oath that he shall do no wrong nor falsity, contrary to his knowledge, but shall plead for his client the best he can, according to his understanding." Mirror of Jus- tices, c. 2, § 5. The oath in Pennsylvania, on the admission of an attorney to the bar, " to behave himself in the office of an attor- ney, according to the best of his learning and ability, and with all good fidelity, as Well to the court as to the client; that he will use no falsehood, nor delay any man's cause, for lucre or malice," is said, by Mr. Sharswood, to present a compre- hensive summary of his duties as a prac- titioner. Sharswood's Legal Ethics, p. 3. The advocate's oath, in Geneva, was as follows : " I solemnly swear, before Al- mighty God, to be faithful to the Eepub- Jic, and to the canton of Geneva ; never to depart from the respect due to the tribunals and authorities ; never to coun- sel or maintain a cause which does not appear to be just or equitable, unless it be the defence of an accused person ; never to employ, knowingly, for the purpose of maintaining the causes confided to me, any means contrary to truth, and never to seek to mislead the judges by any artifice or false statement of facts or law ; to abstain from all offensive personality, and to advance no fact contrary to the honor and reputation of the parties, if it be not indispensable to the cause with which I may be charged ; not to encourage either the commencement or continuance of a suit from any motives of passion or inter- est ; nor to reject, for any consideration personal to myself, the cause of tlie weak, the stranger, or the oppressed." In " The Lawyer's Oath, its Obligations, and some of the Duties springing out of them," by D. Bethune Duffield, Esq., a masterly analysis is given of this oath ; and he well says of it : " Here you have the creed of an upright and honorable lawyer. The clear, terse, and lofty language in which it is expressed needs no argument to elucidate its principles, no eloquence to enforce its obligations. It has in it the sacred savor of divine inspiration, and sounds almost like a restored reading from Sinai's original, but broken tablets." OH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 405 but when the government charged a person with treason or fel- ony, he was denied this privilege.^ Only such legal questions as he could suggest was counsel allowed to argue for him ; and this was but a poor privilege to one who was himself unlearned in the law, and who, as he could not fail to perceive the mon- strous injustice of the whole proceeding, would be quite likely to accept any perversion of the law that might occur in the course of it as regular and proper, because quite in the spirit that denied him a defence. Only after the Revolution of 1688 was a full defence allowed on trials for treason,^ and not until 1836 1 When an ignorant person, unaccus- tomed to public assemblies, and perhaps feeble in body or in intellect, was put upon trial on a charge which, whether true or false, might speedily consign him to an ignominious death, with able coun- sel arrayed against him, and all the ma- chinery of the law ready to be employed in bringing forward the evidence of cir- cumstances indicating guilt, it is painful to contemplate the barbarity which could deny him professional aid. Especially when in most oases he would be impris- oned immediately on being apprehended, and would thereby be prevented from making even the feeble preparations which might otherwise have been within his power. A " trial " under such circum- stances would be only a judicial murder in very many cases. The spirit in which the old law was administered may be judged of from the case of Sir William Parkins, tried for high treason before Lord Holt and his associates in 1695, after the statute 7 Wm. III. c. 3, allowing coun- sel to prisoners indicted for treason, had been passed, but o'W day before it was to take effect. He prayed to be allowed counsel, and quoted the preamble to the statute that such allowance was just and reasonable. His prayer was denied ; Lord Eolt declaring that he must administer the law as he found it, and could not an- ticipate the operation of an act of Parlia- ment, even by a single day. The accused was convicted and executed. See Lieber's Hermeneutics, o. 4, § 16; Sedgwick on Stat, and Const. Law, 81. In proceedings by the Inquisition against suspected her- etics the aid of counsel was expressly prohibited. Lea's Superstition and Force, 377. 2 See an account of the final passage of this bill in Macaulay's "England," Vol. IV. c. 21. It is surprising that the effort to extend the same right to all per- sons accused of felony was so strenuously resisted afterwards, and that, too, not- withstanding the best lawyers in the realm admitted its importance and jus- tice. " I have myself," said Mr. Scarlett, "often seen persons I thought innocent convicted, and the guilty escape, for want of some acute and intelligent counsel tq show the bearings of the different circum- stances on the conduct and situation of the prisoner." House of Commons De- bates, April 25, 1826. " It has lately been my lot," said Mr. Denman, on the same occasion, " to try two prisoners who were deaf and dumb, and who could only be made to understand what was passing by the signs of their friends. The cases were clear and simple; but if they had %een circumstantial cases, in what a situ- ation would the judge and jury be placed, when the prisoner could have no counsel to plead for him." The cases looked clear and simple to Mr. Denman; but how could he know they would not have looked otherwise, had the coloring of the prose- cution been relieved by a counter-pres- entation for the defence? See Sydney Smith's article on Counsel for Prisoners, 45 Edinb. Rev. p. 74 ;. Works, Vol. II. p. 353. The plausible objection to extend- ing the right was, that the judge would be co\insel for the prisoner, — a pure fal- lacy at the best, and, with some judges, a frightful mockery. Baron Garrow, in a charge to a grand jury, said : " It has been truly said that, in criminal cases, judges were counsel for the prisoners. So, un- doubtedly, they were, as far as they could be, to prevent undue prejudice, to guard against improper influence being excited against prisoners ; but it was impossible for them to go further than this, for they 406 CONSTITUTIONAL LIMITATIONS. [CH. X. was the same privilege extended to persons accused of other felonies.^ With us it is a universal principle of constitutional law, that the prisoner shall he allowed a defence by counsel. And generally it will he found that the humanity of the law has provided that, if the prisoner is unable to employ counsel, the court may designate some one to defend him who shall be paid by the government ; but when no such provision is made, it is a duty which counsel so designated owes to his profession, to the court engaged in the trial, and to the cause of humanity and justice, not to withhold his assistance nor spare his best exertions, in the defence of one who has the double mirfortune to be stricken by poverty and ac- cused of crime. No one is at liberty to decline such an appoint- ment,2 and few, it is to be hoped, would be disposed to do so. could not suggest the course of defence prisoners ought to pursue ; for judges only saw the deposition so short a time before the accused appeared at the bar of their country, that it was quite impossible for them to act fully in that capacity." If one would see how easily, and yet in what a shocking manner, a judge might pervert the law and the evidence, and act the part of both prosecutor and king's counsel, while assuming to be counsel for the prisoner, he need not go further back than the early trials in our own country, and he is referred for a specimen to the trials of Robert Tucker and others for piracy, before Chief Justice Trott ii Charleston, S. C, in 1718, as reported in 6 State Trials (Emlyn), 156 et seq. Es- pecially may he there see how the state- ment of prisoners in one case, to which no credit was given for their exculpation, was used as hearsay evidence to condemn a prisoner in another case. All these abuses would have been checked, perhaps altogether prevented, had the prisoners had able and fearless counsel. But with- out counsel for the defence, and under such a judge, the witnesses were not free to testify, the prisoners could not safely make even the most honest explanation, and the jury, when they retired, could only feel that returning a verdict in ac- cordance with the opinion of the judge was merely matter of form. Sydney Smith's lecture on " The judge that smites contrary to the law " is worthy of being carefully pondered in this connection. " If ever a nation was happy, if ever a nation was visibly blessed by God, if ever a nation was honored abroad, and left at home under a government (which we can now conscientiously call a liberal govern- ment) to the full career of talent, industry, and vigor, we are at this moment that people, and this is our happy lot. First, the Gospel has done it, and then justice has done it; and he who thinks it bis duty that this happy condition of exist- ence may remain, must guard the piety of these times, and he must watch over the spirit of justice which exists in these times. First, he must take care that the altars of God are not polluted, that the Christian faith is retained in purity and in perfection ; and then, turning to human affairs, let him strive for spotless, incor- ruptible justice; praising, honoring, and loving the just judge, and abhorring as the worst enemy of mankind him who is placed there to ' judge after the law, and who smites contrary to the law.' " 1 By statute 6 & 7 Wra. IV. c. 114; 4 Cooley's Bl. Com. 355; May's Const. Hist. c. 18. 2 Vise V. Hamilton County, 19 111. 18 ; Wayne Co. v. Waller, 90 Pa. St. 99; s. c. 35 Am. Rep. 636 ; House v. White, 5 Bax. 690. It has been held that, in the absence of express statutory provisions, counties are not obliged to compensate counsel assigned by the court to defend poor prisoners. Bacon v. Wayne County, 1 Mich. 461 ; Wayne Co. e. Waller, 90 Pa. St. 99 ; s. c. 35 Am. Rep. 636. But there are several cases to the contrary. Webb V. Baird, 6 Ind. 13 ; Hall v. Wash- ington County, 2 Greene (Iowa), 478; Carpenter v. Dane County, 9 Wis. 277- -CH. X.] CONSTITUTIONAL PEOTECTIONS, ETC. 407 In guaranteeing to parties accused of crime the right to the aid of counsel, the Constitution secures it with all its accustomed incidents. Among these is that shield of protection which is thrown around the confidence the relation of counsel and client requires, and which does not permit the disclosure by the former, even in the courts of justice, of communications which may have been made to him by the latter, with a view to pending or antici- pated litigation. This is the client's privilege ; the counsel can- not waive it ; and the court would not permit the disclosure even if the client were not present to take the objection.^ But we think a court has a right to re- quire the service, whether compensation is to be made or not ; and that counsel who should decline to perform it, for no other reason than that the law does not provide pecuniary compensation, is un- worthy to hold his responsible office in the administration of justice. Said Cliief Justice Hale in one case : " Although Serjeants have a monopoly of practice in the Common Fleas, they have a right to practise, and do practise, at this bar ; and if we were to assign one of them as coun- sel, and he was to refuse to act, we should make bold to commit him to prison." Life of Chief Justice Hale, in Campbell's Lives of the Chief Justices, Vol. IL 1 The history and reason of the rule which exempts counsel from disclosing professional communications are well stated in Whiting v. Barney, 30 N. Y. 330. And see 1 Phil. Ev., by Cowen, Hill, and Edwards, 130 et seq. ; Earle v. Grant, 46 Vt. 113 ; Machette v. Wanless, 2 Col. 169. The privilege would not cover communications made, not with a view to professional assistance, but in order to induce the attorney to aid in a criminal act. People v. Blakely, 1 Park. Cr. E. 176 ; Bank of Utica v. Mersereau, 8 Barb. Ch. 898. And see the analogous case of Hewitt v. Prince, 21 Wend. 79. Nor communications before a crime with a view to being guided as to it. Orman V. State, 22 Tex. App. 604; People a. "Van Alstine, 57 Mich. 69. But it is not confined to cases where litigation is be- gun or contemplated : Boot v. Wright, 84 N. Y. 72 ; or to cases where a fee is re- ceived : Andrews v. Simms, 38 Ark. 771 ; Bacon v. Fisher, 80 N. Y. 394 ; s. c. 36 Am. Rep. 627 ; and is not waived by the party becoming a witness for himself. Detten- hofer V. State, 34 Ohio St. 91 ; s. c. 32 Am. Eep. 362 ; Sutton v. State, 16 Tex. App. 490; but see Jones v. State, 65 Misc. 179. Communications to a State's attorney with a view to a prosecution are privileged. Vogel v. Gruaz, 110 TJ. S. 311. Communications extraneous or impertinent to the subject-matter of the professional consultation are not priv- ileged. Dixon V. Parmelee, 2 Vt. 186. See Brandon v. Cowing, 7 Rich. 459. Or communications publicly made in the presence of others. Hartford F. Ins. Co. V. Reynolds, 36 Mich. 502. See Perkins v. Grey, 55 Miss. 153; Mofiatt «. Hardin, 22 S. C. 9. Or to the communications made to or by the attorney when acting for both parties. Hanlon v. Doherty, 109 Ind. 37; Cady v. Walker, 62 Mich. 157; Goodwin, &c. Go's Appeal, 117 Pa. St. 614. Or to an attorney if he acts as a mere scrivener. Smith v. Long, 106 111. 485 ; Todd v. Munson, 53 Conn. 679. Or facts within the personal knowledge of counsel, such as the dating of a bond. Bundle v. Foster, 3 Tenn. Ch. 658. The privilege extends to communications by other means than words : State v. Daw- , son, 90 Mo. 149 ; and to communications to a legal adviser, who is not a licensed at- torney. Benedict v. State, 44 Ohio St. 679 ; Ladd v. Bice, 57 N. H. 374. It is waived by asking the attorney who drew a will to be a witness to it. Matter of Coleman, 111 N. Y. 220. It has been intimated in New York that the statute making parties witnesses has done away with the rule which pro- tects professional communications. Mit- chell's Case, 12 Abb. Pr. R. 249 ; note to 1 Phil. Ev., by Cowen, Hill, and Edwards, 159 (marg.). Supposing this to be so in civil cases, the protection would still be the same in the case of persons charged with crime, for such persons cannot be 408 CONSTITUTIONAL LIMITATIONS. [CH. X. Having once engaged in a cause, the counsel is not afterwards at liberty to withdraw from it without the consent of his client and of the court ; and even though he may be impressed with a belief in his client's guilt, it will nevertheless be his duty to see that a conviction is not secured contrary to the law.^ The worst criminal is entitled to be judged by the laws ; and if his con- viction is secured by means of a perversion of the law, the injury to the cause of public justice will be more serious and lasting in its results than his being allowed to escape altogether.^ But how persistent counsel may be in pressing for the acquittal compelled to give evidence against them- selves, so that the reason for protecting professional confidence is the same as formerly. 1 If one would consider this duty and the limitations upon it fully, he should read the criticisms upon the conduct of Mr. Charles Phillips on the trial of Cour- voisier for the murder of Lord William Bussell. See Sharsvrood, Legal Ethics, 46; LitteU, Living Age, Vol. XXIV. pp. 179, 230; Vol. XXV. pp. 289,306; West. Rev. Vol. XXXV. p. 1. 2 There may be cases in which it will become the duty of counsel to interpose between the court and the accused, and - fearlessly to "brave all consequences per- sonal to himself, where it appears to him that in no other mode can the law be vin- dicated and justice done to his client; but these cases are so rare, that doubtless they will stand out in judicial history as notable exceptions to the ready obedience which the bar should yield to the author- ity of the court. The famous scene be- tween Mr. Justice Buller and Mr. Erskine, on the trial of the Dean of St. Asaph for libel, — 5 Campbell's Lives of the Chan- cellors, c. 158; Erskine's Speeches, by Jas. L. High, Vol. L p. 242, — will readily occur to the reader as one of the excep- tional cases. Lord Campbell says of Er- skine's conduct : " This noble stand for the independence of the bar would alone have. entitled Erskine to the statue which the profession afiectionately erected to his memory in Lincoln's Inn Hall. We are to admire the decency and propriety of his demeanor during the struggle^ no less than its spirit, and the felicitous pre- cision with which he meted out the re- quisite and justifiable portion of defiance. His example has had a salutary effect in illustrating and establishing the relative duties of judge and advocate in Eng- land." And elsewhere, in speaking of ilr. Fox's Libel Act, he makes the following somewhat extravagant remark : " I liave said, and I still think, that this great con- stitutional triumph is mainly to be as- cribed to Lord Camden, who had been fighting in the cause for half a century, and uttered his last words in the House of Lords in its support ; but had he not received the invaluable assistance of Erskine, as counsel for the Dean of St. Asaph, the Star Chamber might have been re-established in this country." And Lord Brougham says of Erskine : " He was an undaunted man ; he was an undaunted advocate. To no court did he ever truckle, neither to the court of the King, neither to the court of the King's Judges. Their smiles and their frowns he disre- garded alike in the fearless discharge of his duty. He upheld the liberty of the peers against the one ; he defended the rights of the people against both com- bined to destroy them. If there be yet amongst us the power of freely discuss- ing the acts of our rulers ; if there be yet the privilege of meeting for the promo- tion of needful reforms ; if he who de- sires wholesome changes in our Constitu- tion be still recognized as a patriot, and not doomed to die the death of a traitor, — let us acknowledge with gratitude that to this great man, under Heaven, we owe this felicity of the times." Sketches of Statesmen of the Time of George III. A similar instance of the independence of counsel is narrated of that eminent advo- cate, Mr. Samuel Dexter, in the reminis- cences of his life by " Sigma," published at Boston, 1857, p. 61. See Story on Const. (4th ed.) § 1064, note. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 409 of his client, and to what extent he may be justified in throwing his own personal character as a weight in the scale of justice, are questions of ethics rather than of law. No counsel is justifiable who defends even a just cause with the weapons of fraud and falsehood, and no man on the other hand can excuse himself for accepting the confidence of the accused, and then betraying it by a feeble and heartless defence. And in criminal cases we think the court may sometimes have a duty to - perform in seeing that the prisoner suffers nothing from inattention or haste on the part of his counsel, or impatience on the part of the prosecuting officer or of the court itself. Time may be precious to the court ; but it is infinitely more so to him whose life or whose liberty may de- pend upon the careful and patient consideration of the evidence ; when the counsel for the defence is endeavoring to sift the truth from the falsehood, and to subject the whole to logical analysis, so as to show that how suspicious soever the facts may be, they are nevertheless consistent with innocence. Often indeed it must happen that the impression of tiie prisoner's guilt, which the judge and the jury unavoidably receive when the case is opened to them by the prosecuting officer, will, insensibly to themselves, color all the evidence in the case, so that only a sense of duty will induce a due attention to the summing up for the prisoner, which after all may prove unexpectedly convincing. Doubtless the privilege of counsel is sometimes abused in these cases ; we cannot think an advocate of high standing and character has a right to endeavor to rob the jury of their opinion by asseverating his own belief in the innocence of his client; and cases may arise in which the court will feel compelled to impose some rea- sonable restraints upon the address to the jury ; ^ but it is better in these cases to err on the side of liberality ; and restrictions which do not leave to counsel, who are apparently acting in good faith, such reasonable time and oipportunity as they may deem necessary for presenting their client's case fully, may possibly in some cases be so far erroneous in law as to warrant setting aside a verdict of guilty .^ Whether counsel are to address the jury on questions of law in criminal cases, generally, is a point which is still in dispute. If the jury in the particular case, by the constitution or statutes of the State, are judges of the law, it would seem that counsel should 1 Thus it has been held, that, even see Lynch v. State, 9 Ind. 541 ; Phoenix though the jury are the judges of the law Ins. Co. v. Allen, 11 Mich. 501. in criminal cases, the court may refuse ^ In People a. Keenan, 13 Cal. 581, a to allow counsel to read law-books to the verdict in a capital case was set aside on jury. Murphy v. State, 6 Ind. 490. And this ground. 410 CONSTITUTIONAL LIMITATIONS. [CH. X. be allowed to address them fully upon it,^ though the contrary seems to have been held in Maryland : ^ while in Massachusetts, where it is expected that the jury will receive the law from the court, it is nevertheless held that counsel has a right to address them upon the law.^ It is unquestionably more decorous and more respectful to the bench that argument upon the law should ailways be addressed to the court ; and such, we believe, is the general practice. The jury hear the argument, and they have a right to give it such weight as it seems to them properly to be entitled to. For misconduct in their practice, the members of the legal profession may be summarily dealt with by the courts, who will not fail, in all proper cases, to use their power to protect -clients or the public, as well as to preserve the profession from the con- tamination and disgrace of a vicious associate.* A man of bad reputation may be expelled for that alone ; ^ and counsel who has 1 Lynch v. State, 9 Ind. 541 ; Murphy cises not his own discretion, but that of the attorney-general, whose locum tenens at sufferance he is ; and he consequently does so under the obligation of the offi- cial oath." And see Meister u. People, 31 Mich. 99. 1 1 Bl. Com. 134. Montesquieu says : " In governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will. We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing what- ever the laws permit, and if a citizen could do what they forbid, he would no longer be possessed of liberty, because all his fellow-citizens would enjoy the same power." Spirit of the Laws, Book 11, c. 3. 2 "Liberty," says Mr. Webster, "is the creature of law, essentially different from that authorized licentiousness that trespasses on right. It is a, legal and a refined idea, the offspring of high civil- CH. X.] CONSTITUTIONAL PKOTECTIONS, ETC. 413 In examining the qualifications and restrictions which the law- imposes upon personal liberty, we shall find them classed, accord- ing to their purpose, as, first, those of a public, and, second, those of a private nature. The first class are those which spring from the relative duties and obligations of the citizen to society and to his fellow-citizens. These may be arranged into sub-classes as follows : (1) Those imposed to prevent the commission of crime which is threatened ; (2) those in punishment of crime committed ; (3) those in pun- ishment of contempts of court or legislative bodies, or to render their jurisdiction effectual ; (4) those necessary to enforce the duty citizens owe in defence of the State ; ^ (5) those which may become important to protect the community against the acts of those who, by reason of mental infirmity, are incapable of self- control. All these limitations are well recognized and generally understood, but a particular discussion of them does not belong to our subject. The second class are those which spring from the helpless or dependent condition of individuals in the various relations of life. 1. The husband, at the common law, is recognized as having legal custody of and power of control over the wife, with the right to direct as to her labor, and to insist upon its performance. The precise nature of the restraints which may be imposed by the b'wsband upon the wife's actions, it is not easy, from the nature of the case, to point out and define ; but at most they can only be such gentle restraints upon her liberty as improper conduct on her part may appear to render necessary ; ^ and the general ten- dency of public sentiment, as well as of the modern decisions, has ization, which the savage' never under- without warrant persons refusing to obey stood and never can understand. Lib- the orders of fire wardens at a fire was erty exists in proportion to wholesome held unwarranted and void, restraint ; the more restraint on others to ,^2 Kent, 181. See Cochran's Case, 8 keep off from us, the more liberty we Dowl. P. C. 630, The husband, however, have. It is an error to suppose that lib- is under no obligation to support his wife erty consists in a paucity of laws. If one except at his own home ; and it is only wants few laws, let him go to Turkey, when he wrongfully sends her away, or The Turk enjoys that blessing. The so conducts himself as to justify her in working of our complex system, full of leaving him, that he is bound to support checks and restraints on legislative, ex- her elsewhere. Eumney w. Keyes, 7 N. H. ecutive, and judicial power, is favorable 570 ; Allen v. Aldrich, 29 N. H. 63 ; Shaw to liberty and justice. Those checks and U.Thompson, 16 Pick. 198; Clement w. restraints are so many safeguards set Mattison, 3 Eich. 93. In such a case his around individual rights and interests, liability to supply her with necessaries That man is free who is protected from cannot be restricted by giving notice to injury." Works, "Vol. II. p. 393. particular persons not to trust her. Bol- 1 In Judson v. Reardon, 16 Minn. 431, ton v. Prentice, 2 Strange, 1214 ; Harris a statute authorizing the members of a v. Morris, 4 Esp. 41 ; Watkins v. De Ap municipal council to arrest and imprison mend, 89 Ind. 553. 414 CONSTITUTIONAL LIMITATIONS. [CH. X. been in the direction of doing away with the arbitrary power which the husband was formerly supposed to possess, and of plar cing the two sexes in the marriage relation upon a footing nearer equality. It is believed that the right of the husband to chas- tise the wife, under any. circumstances, would not be recognized in this country ; and such right of control as the law gives him would in any case be forfeited by such conduct towards the wife as was not warranted by the relation, and which should render it improper for her to live and cohabit with him, or by such conduct as, under the laws of the State, would entitle her to a divorce.^ And he surrenders his right of control also, when he consents to her living apart under articles of separation.^ 2. The father of an infant, being obliged by law to support his child, has a corresponding right to control his actions, and to employ his services during the continuance of legal infancy; The child may be emancipated from this control before com- ing of age, either by the express assent of the father, or by being turned away from his father's house, and left to care for himself;^ though in neither case would the father be^ re- leased from an obligation which the law imposes upon him to prevent the child becoming a public charge, and whicli the State may enforce \^henever necessary. The mother, during the father's life, has a power of control subordinate to his ; but on his death,* or conviction and sentence to imprisonment for fel- ony,^ she succeeds to the relative rights which the father possessed before. 3. The guardian has a power of control over his ward, corre- sponding in the main to that which the father has over his child, though in some respects more restricted, while in others it is broader. The appointment of guardian, when made by the courts, is of local force only, being confined to the State in which it is made, and the guardian would have no authority to change the domicile of the ward to another State or country. But the ap- pointment commonly has reference to the possession of property by the ward, and over this property the guardian is given a power 1 Hutcheson v. Peck, 5 Johns. 196; * Dedham o. Natick, 16 Mass. 135! Love V. Moynahan, 16 111. 277. Com'rs Harford Co. v. Hamilton, 60 Md. 2 Saunders v. Rodway, 16 Jur. 1005 ; 340. 13 Eng. L. & Eq. 463. 6 Bailey's Case, 6 Dowl. P. C. 811. 8 Whiting V. Earle, 3 Pick. 201 ; s. c. If, however, there be a guardian ap- 15 Am. Deo. 207 ; McCoy v. Huffman, 8 pointed for the child by the proper court, Cow. 841 ; State w. Barrett, 45 N. H. 15 ; his right to the custody of the child is Wolcott V. Rickey, 22 Iowa, 171 ; Faii^ superior to that of the parent. Maoready hurst V. Lewis, 23 Ark. 435 ; Hardwick v. v. Wolcott, 33 Conn. 321. Pawlet, 86 Vt. 320. CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 415 of control which is not possessed by the father, as such, over the property owned by his child.^ 4. The relation of master and apprentice is founded on a con- tract between the two, generally with the consent of the parent or party standing in loco parentis to the latter, by which the master is to teach the apprentice some specified trade or means of living, and the apprentice, either wholly or in part in considera- tion of the instruction, is to perform services for the master while receiving it. This relation is also statutory and local, and the power to control the apprentice is assimilated to that of the parent by the statute law.^ 5. The power of the master to impose restraints upon the ac- tion of the servant he employs is of so limited a nature that practically it may be said to rest upon continuous voluntary assent. If the servant misconducts himself, or refuses to submit to proper control, the master may discharge him, but cannot resort to confinement or personal chastisement. 6. The relation of teacher and scholar places the former more nearly in the place of the parent than either of the two preceding relations places the master. While the pupil is under his care, he has a right to enforce obedience to his commands lawfully given in his capacity of teacher, even to the extent of bodily chastisement or confinement. And in deciding questions of discipline he acts judicially, and is not to be made liable, either civilly or criminally, unless he has acted with express malice, or been guilty of such excess in punishment that malice may fairly be implied. All presumptions favor the correctness and justice of his action.^ 7. Where parties bail another, in legal proceedings, they, are regarded in law as his jailers, selected by himself, and with the right to his legal custody for the purpose of seizing and delivering him up to the oflficers of the law at any time before the liability of the bail has become fixed by a forfeiture being judicially de- clared on his failure to comply with the condition of the bond.* 1 1 Cooley's Bl. Com. 462, and cases Anderson v. State, 3 Head, 455 ; Lander cited. V. Seaver, 32 Vt. 114 ; Morrow v. Wood, 2 The relation is one founded on per- 35 Wis. 59; Patterson v. Nutter, 78 Me. Bonal trust and confidence, and the master 509 ; Sheehan v. Sturges, 53 Conn. 481 ; cannot assign the articles of apprentice- Vanvactor v. State, 113 Ind. 276. ship except by consent of the apprentice * Harp v. Osgood, 2 Hill, 216 ; Com- and of his proper guardian. Haley u.Tay- monwealth v. Brickett, 8 Pick. 138; lor,3 Dana, 222 ;.Nickerson D.Howard, 19 Worthen v. Prescott, 60 Vt. 68. The Johns. 113 ; Tucker v. Magee, 18 Ala. 99. principal may be followed, if necessary, 8 State V. Pendergrass, 2 Dev. & Bat. out of the jurisdiction of the court in 865; Cooper v. McJunkin, 4 Ind. 290; which the bail was taken, and arrested Commonwealth v. Randall, 4 Gray, 38 ; wherever found. Parker f. Bidwell, 3 416 CONSTITUTIONAL LIMITATIONS. [CH. X. This is a right which the bail may exercise in person or by agent, and without resort to judicial process.^ 8. The control of the creditor over the person of his debtor, through the process which the law gives for the enforcement of his demand, is now very nearly abolished, thanks to the humane provisions which have been made of late by statute or by constitu- tion. In cases of torts and where debts were fraudulently con- tracted, or where there is an attempt at a fraudulent disposition of property with intent to delay the creditor, or to deprive him of payment, the body of the debtor is allowed to be seized and confined ; but the reader must be referred to the constitution and statutes of his State for specific information on this subject. These, then, are the legal restraints upon personal liberty. For any other restraint, or for any abuse of the legal rights which have been specified, the party restrained is entitled to immediate process from the courts, and to speedy relief. The right to personal liberty did not depend in England on any statute, but it was the birthright of every freeman. As slavery ceased it became universal, and the judges were bound to protect it by proper writ when infringed. But in those times when the power of Parliament was undefined and in dispute, and the judges held their offices only during the king's pleasure, it was almost a matter of course that rights should be violated, and that legal redress should be impracticable, however clear those rights might be. But in many cases it was not very clear what the legal rights of parties were. The courts which proceeded according to the course of the common law, as well as the courts of chancery, had limits to their authority which could be understood, and a definite course of proceeding was marked out for them by statute or by custom ; and if they exceeded their jurisdiction and invaded the just liberty of the subject, the illegality of the process would generally appear in the proceedings. But there were two tribu- nals unknown to the common law, but exercising a most fearful authority, against whose abuses it was not easy for the most up- right and conscientious judge in all cases to afford relief. These were, 1. The Court of Star Chamber, which became fully recog- nized and established in the time of Henry VII., though originat- Conn. 84. Even though it be out of Atl. E^p. 918 (R. I.). Nor will surrender the State. Harp v. Osgood, supra. And discharge surety on bond for the support doors, if necessary, may be broken in or- of a deserted wife. Miller v. Com., 17 Atl. der to make the arrest. Bead v. Case, 4 Kep. 864 (Pa.). Conn. 166 ; B. o. 10 Am. Dec. 1 10 ; Nicolla i Parker v. Bidwell, 3 Conn. 84 ; Nic- V. Ingersoll, 7 Johns. 146. After the re- oils v. Ingersoll, 7 Johns. 145 ; Worthen cognizance is defaulted.surrender does not v. Prescott, 60 Vt. 68. discharge the bail. State v. McGuire, 17 OH. X.] CONSTITUTIONAL PEOTECTIONS, ETC. 417 ing long before. Its jurisdiction extended to all sorts of offences, contempts of authority and disorders, the punishment of which was not supposed to be adequately provided for by the common law ; such as slanders of persons in authority, the propagation of seditious news, refusal to lend money to the king, disregard of executive proclamations, &c. It imposed fines without limit, and inflicted any punishment in the discretion of its judges short of death. Even jurors were punished in this court for verdicts in State trials not satisfactory to the authorities. Although the king's chancellor and judges were entitled to seats in this court, the actual exercise of its powers appears to have fallen into the hands of the king's privy council, which sat as a species of inqui- sition, and exercised almost any authority it saw fit to assume.^ The court was abolished by the Long Parliament in 1641. 2. The Court of High Commission, established in the time of Elizabeth, and which exercised a power in ecclesiastical matters correspond- ing to that which the Star Chamber assumed in other oases, and in an equally absolute and arbitrary manner. This court was' also abolished in 1641, but was afterwards revived for a short time in the reign of James II, It is evident that while these tribunals existed there could be no effectual security to liberty. A brief reference to the remark- able struggle which took place during the reign of Charles I. will perhaps the better enable us to understand the importance of those common-law protections to personal liberty to which we shall have occasion to refer, and also of those statutory securities which have since been added. When the king attempted to rule without the Parliament, and in 1625 dissolved that body, and resorted to forced loans, the grant of monopolies, and the levy of ship moneys, as the means of replenishing a treasury that could only lawfully be supplied by taxes granted by the commons, the privy council was his conve- nient means of enforcing compliance with his will. Those who refused to contribute to the loans demanded were committed to prison. When they petitioned the Court of the King's Bench for their discharge, the warden of the Fleet made return to the writ of habeas corpus that they were detained by warrant of the privj, council, informing him of no particular cause of imprisonment, but that they were committed by the special command of his 1 See Hallam, Con8titutional History, set forth in Brodie's Constitutional His- c. 1 and 8 ; Todd, Parliamentary Govern- tory of the British Empire, to which the ment in England, Vol. II. c. 1. The rise reader is referred for more particular in- and extension of authority of this court, formation, and its arbitrary character, are very fully 27 418 CONSTITUTIONAL LIMITATIONS- [CH. X. majesty. Such a return presented for the decision of the cottrt the question, " Is such a warrant, which does not specify the cause of detention, valid by the laws of England ? " The court held that it was, justifying their decision upon supposed prece- dents, although, as Mr. Hallam says, " it was evidently the con- sequence of this decision that every statute from the time of Magna Charta, designed to protect the personal liberties of Englishmen, became a dead letter, since the insertion of four words in a warrant (^per spevicde mandatum regisy^ which might become matter of form, would control their remedial efficacy* And this wound was the more deadly in that the notorious cause of these gentlemen's imprisonment was their withstanding an illegal exaction of money. Everything that distinguished our constitutional laws, all that rendered the name of England valu- able, was at stake in, this issue." ^ This decision, among other violent acts, led to the Petition of Right, one of the principal charters of English liberty, but which was not assented to by the king until the judges had intimated that if he saw fit to violate it by arbitrary commitments, they would take care that it should not be enforced by their aid agaihst his will. And four years later, when the king committed members of Parliament for words spoken in debate offensive to the royal prerogative, the judges evaded the performance of their diity on habeas ,eorpus, and the members were only discharged when the king gave his consent to that course.^ The Habeas Corpus Act was passed in 1679, mainly to prevent such abuses and other evasions of duty by judges and ministerial officers, and to compel prompt action in any case in which illegal imprisonment was alleged* That act gave no new right to the subject, but it furnished the means of enforcing those which ex- isted before.^ The preamble recited that " whereas great delays have been used by sheriffs, jailerdi, and other officers to whose custody any of the king's subjects have been committed for criminal or supposed criminal matters, in making returns of writs of habeas corpus, to them directed, by standing out on alias or pluries habeas corpus, and sometimes more, and by other shifts to avoid their yielding obedience to such writs, contrary to their duty and the known laws of the land, whereby many of the king's subjects have been and hereafter may be long detained in prison in such cases, where by law they are bailable, to their great charge 1 Hallain, Const. Hist. c. 7. See also ' Halkin, Const. Hist. c. 13 ; Beeeh- Bt-odie> Const. Hist. Vol. IL c. 1. lug's Case, 4 B. & C. 186 ; Matter of Jack- ' Hallam, Const. Hist. c. 8 ; Brodie, son, 16 Mieli. 436. Const. Hist. Vol. I. c. 8. GH. X.] CONSTITUTIONAL PROTECTIONSj ETC. 419 and Texation. For the prevention whereof, and the more speedy relief of all persons imprisoned for any such criminal or supposed criminal matters," the act proceeded to make elaborate and care- ful provisions for the future. The important provisions of the act may be summed up as follo^Vs : That the writ of habeas eorpui might be issued by any court of record or judge thereof, either in term-time or vacation, on the application of any person confined, or of any person for him ; the application to be in writing and on oath, and with a copy of the warrant of commitment attached, if procurable ; the writ to be returnable either in court or at cham- bers ; the person detaining the applicant to make return to the writ by bringing up the prisoner with the cause of his detention, and the court or judge to discharge him unless the imprisonnient appeared to be legal, and in that case to take bail if the case was bailable ; and performance of all these duties was made compul- sory, under heavy penalties. Thus the duty which the judge or other officer might evade with impunity before, he must now per- form or suffer punishment. The act also provided for punishing severely a second commitment for the same cause, after a party had once been discharged on habeas corpus, and also made the Sending of inhabitants of England, Wales, and Berwick-upon- Tweed abroad for imprisonment illegal, and subject to penalty. Important as this act was,^ it was less broad in its scope than the remedy had been before, being confined to cases of imprisonment for criminal or supposed criminal matters ; ^ but the attempt in Parliament nearly a century later to extend its provisions to other cases was defeated by the opposition of Lord Mansfield j on the express ground that it was unnecessary, inasmuch as the common- law remedy was sufficient ; * as perhaps it might have been, had officers been always disposed to perform their duty. Another attempt in 1816 was successful.* The Habeas Corpus Act was not made, in express terms, to extend to the American colonies, but it was in some expressly, and in others by silent acquiescence, adopted and acted upon, And all the subsequent legislation in the American States has been based upon it, and has consisted in little more than a re-enactment of its essential provisions. 1 Mr. Hurd, in the appendix to his 198; Wilson's Case, 7 Queen's Bench excellent treatise on the Writ of Hahea,8 Rep. 984. Corpus, gives a complete copy of the act. » Life of Mansfield by Lord Campbell, See also appendix to Lieber, Citil Lib- 2 Lives of Chief Justices, o. 35 ; 15 Han- erty and Self-Government ; Broom, Const, sard's Debates, 897 et seq. Law, 218. * By Stat. 56 Geo. III. c. 100. See 2 See Mayor of London's Case, 8 Wils. Broom, Const. Law, 224. 420 CONSTITUTIONAL LIMITATIONS. [OH. X. What Courts issue the Writ. The protection of personal liberty is for the most part confided to the State authorities, and to the State courts the party must apply for relief on habeas corpus when illegally restrained. There are only a few cases in which the federal courts can interfere ; and those are cases in which either the illegal imprisonment is under pretence of national authority, or in which this process be- comes important or convenient in order to enforce or vindicate some right, or authority under the Constitution or laws of the United States. The Judiciary Act of 1789 provided that each of the several federal courts should have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which might be necessary for the exercise of their re- spective jurisdictions, and agreeable to the principles and usages of law ; and that either of the justices of the Supreme Court, as well as the district judges, should have power to grant writs of habeas corpus for the purposes of an inquiry into the cause of commitment ; provided that in no case should such writs extend to prisoners in jail, unless where they were in custody under or by color of the authority of the United States, or were committed to trial before some court of the same, or were necessary to be brought into court to testify.^ Under this statute no court of the United States or judge thereof could issue a habeas corpus to bring up a prisoner in custody under a sentence or execution of a State court, for any other purpose than to be used as a witness. And this was so whether the imprisonment was under civil or criminal process.^ During what were known as the nullification troubles in South Carolina, the 'defect of federal jurisdiction in respect to this writ became apparent, and another act was passed, having for its ob- ject, among other things, the protection of persons who might be prosecuted under assumed State authority for acts done under the laws of the United States. This act provided that either of the justices of the Supreme Court, or a judge of any District Court of the United States, in addition to the authority already conferred by law, should have power to grant writs of habeas corpus in all cases of a prisoner or prisoners in jail or confinement, where he or they shall be committed or confined on or by any authority of law, for any act done or omitted to be done, in pursuance of a law 1 1 Statutes atXarg©, 81. ^ Ex parte Dorr, 8 How. 103. CH. X.] CONSTITUTIONAL PEOTECTIONS, ETC. 421 of the United States, or any order, process, or decree of any judge or court thereof.^ In 1842 further legislation seemed to have become a necessity, in order to give to the federal courts authority upon this writ over cases in which questions of international law were involved, and which, consequently, could properly be disposed of only by the jurisdiction to which international concerns were by the Con- stitution committed. The immediate occasion for this legislation was the arrest of a subject of Great Britain by the authorities of the State of New York, for an act which his government avowed and took the responsibility of, and which was the subject of diplo* matic correspondence between the two nations. An act of Con- gress was consequently passed, which provides that either of the justices of the Supreme Court, or any judge of any District Court of the United States in which a prisoner is confined, in addition to the authority previously conferred by law, shall .have power to grant writs of habeas corpus in all cases of any prisoner or prisoners in jail or confinement, where he, she, or they, being subjects or citizens of a foreign State, and domiciled therein, shall be committed, or confined, or in custody, under, or by any authority, or law, or process founded thereon, of the United States or of any one of them, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commis- sion, or order, or sanction of any foreign State or sovereignty, the validity or effect whereof depends upon the law of nations, or under color thereof.^ In 1867 a further act was passed, which provided that the 1 4 Stat, at Large, 634. See Ex parte lator discharged. A similar ruling has Robinson, 6 McLean, 355 ; s. c. 1 Bond, been made where a marshal was charged 39. Robinson was United States mar- in a State court with murder committed Bhal, and was imprisoned under a war- whileprotectinga Justice of the Supreme rant issued by a State court for executing Court from an attack. In re Neagle, 39 process under the Fugitive Slave Law, Fed. Rep. 833; affirmed in U. S. Sup. and was discharged by a justice of the Ct., April, 1890. See also Ex parte Vir- Supreme Court of the United States un- ginia, 100 U. S. 339 ; Ex parte Siebold, der this act. See also United States ». 100 U. S. 871 ; Ex parte Clark, 100 U. S. Jailer of Fayette Co., 2 Abb. U. S. 265. 399; Ex parte Bridges, 2 Woods, 428; The relator in that case was in custody Ex parte McKean, 3 Hughes, 23 ; Ex of the jailer under a regular commitment parte Jenkins, 2 Wall. Jr. 521. charging him under the laws of Kentucky 2 5 Stat, at Large, 539. McLeod's with murder. He averred and offered to Case, which was the immediate occasion show that the act with which he was of the passage of this act, will be found charged was done by him under the au- reported in 25 Wend. 482, and 1 Hill, thority of the United States, and in ex- 377 ; 8. c. 37 Am. Dec. 328. It was re- ecution of its laws. The federal district viewed by Judge Talmadge in 26 Wend, judge entered upon an examination of the 663, and a reply to the review appears in facts on habeai corpus, and ordered the re- 3 Hill, 636. 422 CONSTITUTIONAL LIMITATIONS. [CH, X. several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases where any per- son may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States.* These are the cases in which the national courts and judges have jurisdiction of this writ : in other cases the party must seek his remedy in tlie proper State tribunal.^ And although the State courts formerly claimed and exercised the right to inquire into the lawfulness of restraint under the national authority,^ it is now settled by the decision of the Supreme Court of the United States, that the question of the legality of the detention in such cases is one for the determination, exclusively, of the federal ju- diciary, so that, although a State court or judge may issue this process in any case where illegal restraint upon liberty is alleged, yet when it is served upon any officer or person who detains an- other in custody under the national authority, it is his duty, by proper return, to make known to the State court or judge the authority by which he holds such person, but not further to obey the process ; and that as the State judiciary have no authority within the limits of the sovereignty assigned by the Constitution to the United States, the State court or judge can proceed no further with the case.* 1 R. S. U. S. § 751 et eeq. See In re Booth, the State courts have frequently Brosnahan, 18 Fed. Bep. 62 ; In re Ah since assumed to pass definitely upon Jow, 29 Fed. Rep. 181 ; In re Chow Goo cases of alleged illegal restraint under Fooi, 25 Fed. Rep. 77. While in advance federal authority, and this, too, by the of trial in a State court for an offence acquiescence of the federal officers. As against a State law which is void under the remedy In the State courts is gener- the federal Constitution, a federal court ally more expeditious and easy than can may discharge a defendant, yet ordinarily be afforded in the national tribunals, it is when bail is granted it will not do so. possible that the federal authorities may 'Ex parte Boyall, 117 U. S. 241. still continue to acquiesce in such actioa ' Ex parte Dorr, 3 How. 103 ; Barry v. of the State courts, in cases where there Mercein, 5 How. 103 ; De KrafTt v. Bar- can be no reason to fear that they will ney, 2 Black, 704. . See United States v, take different views of^ the questions in- French, 1 Gall. 1; £j:;7a>te Barry, 2 How. volved from those likely to be held by 65. the federal courts. Nevertheless, while ° See the cases collected in Hurd on the case of Ableman v. Booth stands nn- Habeas Corpus, B. 2, c. 1, § 5, and in reversed, the law must be held to be as Abb. Nat. Dig. 609, note. there declared. It has been approved in * Ableman v. Booth, 21 How. 506. Tarble's Case, 18 Wall. 897, Chief Justice See Norris v. Newton, 5 McLean, 92 ; Cliase dissenting. United States v. Rector, 6 McLean, 174 ; An agent of a State to receive from Spangler's Case, 11 Mich. 298 ; In re Hop- another State a person under extradition son, 40 Barb. 84 ; Ex parte Hill, 5 Nev. proceedings is not an officer of the United 154 ; Ex parte Bur, 49 Cal. 159. Not- States, nor is his detention of the prisoner withstanding the decision of Ableman v. so far under national authority thqt » CH. X.] CONSTITUTIONAL PROTECTIONS, ETC. 423 .The State constitutions recognize the writ of habeas corpus as an existing remedy in the cases to which it is properly applicable, and designate the courts or officers which may issue it ; but they do not point out the cases in which it may be employed. Upon this subject the common law and the statutes must be our guide j and although the statutes will be found to make specific provi' Bion for particular cases, it is believed that in no instance which has fallen under our observation has there been any intention to restrict the remedy, and make it less broad and effectual than it was at the common law.^ We have elsewhere referred to certain rules regarding the validity of judicial proceedings.^ In the great anxiety on the part of our legislatures to make the most ample provision for speedy relief from unlawful confinement, authority to issue the writ of habeas corpus has been conferred upon inferior judicial officers, who make use of it sometimes as if it were a writ of er- ror, under which they might correct the errors and irregularities of other judges and courts, whatever their relative jurisdiction and dignity. Any such employment of the writ is an abuse.^ State court may not compel him to bring in the prisoner for an inquiry into the legality of his detention ; that is, whether the warrant and the delivery to the agent were in conformity to the federal stat- utes. In summing up the discussion Harlan, 3., aa,ys: "Subject, then, to the exclusiye and paramount authority of the national government, by its own judicial tribunals, to determine whether persons held in custody by authority of the courts of the United States, or by the commis- sioners of such courts, or by officers in the general government, acting under its laws, are so held in conformity with law, the States have the right, by their own courts, or by the judges thereof, to in- quire into the grounds upon which any person, within their respective territorial limits, is restrained of his liberty, and to discharge him, if it be ascertained that such restraint is illegal; and this, notr withstanding such illegality may arise from a violation of the Constitution or the laws of the United States." Eobb v. Connolly, 111 U. S. 624. 1 See Matter of Jackson, 15 Mich. 417, where this whole subject is fully consid- ered. The application for the writ is not necessarily made by the party in person, but may be made by any other person on his behalf, if a sufficient reason is stated for its not being made by him personally. The Hottentot Venus Case, 13 East, 196 ; Child's Case, 29 Eng. L. & Eq. 259. A wife may have the writ to release her husband from unlawful imprisonment, and may herself be heard on the appUca-. tion. Cobbett's Case, 15 Q. B. 181, note ; Cobbett I). Hudson, 10 Eng. L. & Eq. 318; a. c. 15 Q. B. 988. Lord Campbell in this case cites the case of the wife of John Bunyan, who was heard on his behalf when in prison. ' See post, p. 489 et seq. » Ex parte Clay, 98 Mo. 578 ; State b. Hayden, 35 Minn. 283 ; Willis v. Bayles, 105 Ind. 363; State v. Orton, 67 Iowa, 554 ; People v. Liscomb, 60 N. Y. 559, 674; Petition of Crandall, 34 Wis. 177; ' Ex parte Van Hagan, 25 Ohio St. 426; Ex parte Shaw, 7 Ohio St. 81 ; Ex parte Parks, 93 U. S. 18, 23 ; Perry v. State, 41 Tex. 488; Matter of Underwood, 30 Mich. 502; Matter of Eaton, 27 Mich. 1; In re Burger, 39 Mich. 203 ; Ex parte Sim- mons, 62 Ala. 416 ; Re Stupp, 12 Blatch. 501 ; Ex parte Winslow, 9 Nev. 71 ; Ex parte Hartman, 44 Cal. 32 ; In re Falvey, 7 Wis. 630 ; Petition of Semler, 41 Wig. 517 ; In re Stokes, 5 Sup. Ct. (N. Y.) 71; Prohibitory Amendment Cases, 24 Ean. 700; ExparU Thompson, 93 III. 89; Ex parte Fernandez, 10 C. B. n. s. 2, 37. This 424 CONSTITUTIONAL LIMITATIONS, ICH. X. Where a party who is in confinement under judicial process- is brought up on habeas corpus, the court or judge before whom he is returned will inquire : 1. Whether the court or officer issuing the process under which he is detained had jurisdiction of the case, and has acted within that jurisdiction in issuing such pro- cess.^ If so, mere irregularities or errors of judgment in the ex* ercise of that jurisdiction must be disregarded on this writ, and must be corrected either by the court issuing the process, or on regular appellate proceedings.^ 2. If the process is not void for is 80, even though there be no appellate tribunal in which the judgment may be reviewed in the ordinary way. Ex parte Plante, 6 Lower Can. Rep. 106. The writ cannot be used to prevent the commission upon a trial of anticipated errors. Ex parte Crouch, 112 U. S. 178. It is worthy of serious consideration whether, in those States where the whole judicial power is by the constitution vested in certain spe- cified courts, it is competent by law to give to judicial officers not holding such courts authority to review, even indirectly, the decisions of the courts, and to discharge persons committed under their judgments. Such officers could exercise only a special statutory authority. Yet its exercise in such cases is not only judicial, but it is in the nature of appellate judicial power. The jurisdiction of the Supreme Court of the United States to issue the writ in cases of confinement under the order of the Dis- trict Courts, was sustained in Ex parte BoUman & Swartwout, 4 Cranch, 75, and Matter of IVIetzger, 5 How. 176, on the ground that it was appellate. It is original only where a State is a party, or an ambassador, minister, or consul. Ex parte Hung Hang, 108 U. S. 552. See also Ex parte Kearney, 7 Wheat. 38 ; Ex parte Watkins, 7 Pet. 568 -/Ex parte Mil- burn, 9 Pet. 704; Matter of Kaine, 14 How. 103 ; Matter of Eaton, 27 Mich. 1 ; Matter of Buddington, 29 Mich. 472. 1 The validity of the appointment or ■election of an officer de facto cannot be inquired into on habeas carpus. Ex parte Strahl, 16 Iowa, 369 j Eussell v. Whiting, 1 Wins. (N. C.) 463. Otherwise if a mere usurper issues process for the imprison- ment of a citizen. Ex parte Strahl, supra. If the record shows that relator stands convicted of that which is no crime, he is of course entitled to his discharge. Ex parte Kearney, 55 Cal. 212. So if punished for contempt in disobeying a void order of court. In re Ayers, 123 U. S. 443 ; Ex parte Fisk, 113 U. S. 713. So if he is held under a sentence which contravenes an express constitu^ tional immunity, as when sentenced a second time for the same offence. Niel- sen, Petitioner, 131 U. S. 176. See, also. Ex parte Royall, 117 U. S. 241 ; /n re Dill, 32 Kan. 648 ; Brown v. DufCus, 66 Iowa, 193 ; Ex parte Rollins, 80 Va. 314 ; Ex parte Rosenblatt, 19 Nev. 489. The question of jurisdiction of a court of lim- ited jurisdiction is open upon this writ. People V. The Warden, &c. 100 N. Y. 20, 3 People V. Cassels, 5 Hill, 164 ; Bush- nell's Case, 9 Ohio St. 183; Ex parte Watkins, 7 Pet. 568 ; Matter of Metzger, 5 How. 176; Ex parte Yarbrough, 110 U. S. 651 ; Ex parte Harding, 120 U. S. 782 ; Petition of Smith, 2 Nev. 338 ; Ex parte Gibson, 31 Cal. 619 ; Hammond ». People, 32 111. 472, per Breese, J. In State v. Shattuck, 45 N. H. 211, Bellows, J., states the rule very correctly as follows : " If the court had jurisdiction of the matter embraced in these causes, this court will not, on habeas corpus, revise the judgment. State ». Towle, 42 N. H. 541 ; Ross's Case, 2 Pick. 166; and Riley's Case, 2 Pick, 171 ; Adams v. Vose, 1 Gray, 51. If in such case the proceedings are irregular or erroneous, the judgment is voidable and not void, and stands good until revised or annulled in a proper proceeding instituted for that purpose ; but when it appears that the magistrate had no jurisdiction, the proceedings are void, and the respon- dent may be discharged on habeas carpus. State V. Towle, before cited ; Kellogg, Ex parte, 6 Vt. 509. See also State v. Rich- mond, 6 N. H. 232 ; Burnham v. Stevens, 83 N. H. 247 ; Hurst v. Smith, 1 Gray, 49." If the court has jurisdiction of an offence, its judgment as to what acts are necessary CH. X.] CONSTITUTIONAL PEOTECTIONS, ETC. 425 ■want of jurisdiction, the furtlier inquiry will be made, whether, by law, the case is bailable, and if so, bail will be taken if the party offers it ; otherwise he will be remanded to the proper custody.^ This writ is also sometimes employed to enable a party to en- force a right of control which by law he may have, springing from some one of the domestic relations ; especially to enable a parent to obtain the custody and control of his child, where it is detained from him by some other person. The courts, however, do not generally go farther in these cases than to determine what is for the best interest of the child ; and they do not feel com- pelled to remand him to any custody where it appears not to be for the child's interest. The theory of the writ is, that it relieves from improper restraint ; and if the child is of an age to render it proper to consult his feelings and wishes, this may be done in any case ; ^ and it is especially proper in many cases where the par- ents are living in separation and both desire his custody. Th6 right of the father, in these cases, is generally recognized as best ; but this must depend very much upon circumstances, and the tender age of the child may often be a controlling consideration against his claim. The courts have large discretionary power in these cases, and the tendency of modern decisions has been to extend, rather than restrict it.^ to constitute it cannot be reviewed. In re unless reversed on appeal, is valid. Ex Coy, 127 U. S. 731. parte Hamilton, 65 Miss. 98. See Ex parte ' 1 It is not a matter of course that the Cuddy, 40 Fed. Rep. 62. party is to be discharged even where the ^ Commonwealth v. Aves, 18 Pick, authority under which he is held is ad- 193; Shaw v. Nachwes, 43 Iowa, 653; judged illegal. For it may appear that Garner v. Gordan, 41 Ind. 92 ; People v. he should be lawfully confined in diffei> Weissenbach, 60 N. Y. 385. ent custody ; in which case the proper ' Barry's Case may almost be said to order may be made for the transfer, exhaust all the law on this subject. We Matter of Mason, 8 Mich. 70 ; Matter of refer to the various judicial decisions King, 28 Cal. 247 ; Ex parte Gibson, 31 made in it, so far as they are reported in Cal. 619. See People v. Kelly, 97 N. Y. the regular reports. 8 Paige, 47 ; 25 212. And where he is detained for trial Wend. 64; People v. Mercein, 3 Hill, 399; on an imperfect charge of crime, the 2 How. 65 j Barry v. Mercein, 5 How. court, if possessing power to commit de 105. See also the recent case of Adams novo, instead o^ discharging him, should v. Adams, 1 Duv. 167. For the former proceed to inquire whether there is prob- rule, see The King v. De Manneville, 5 able cause for holding him for trial, and East, 221 ; Ex parte Skinner, 9 J. B; if so, should order accordingly. Hurd on Moore, 278. The rules of equity prevail Habeas Corpus, 416. A discharge on at present in England on the question of habeas corpus is, apart from statute, con- custody. In re Brown, L. R. 13 Q. B. elusive upon the State. People v. Fair- D. 614. Cases illustrating the doctrine man, 59 Mich. 568 ; State v. Miller, 97 N. that the good of the child will control : C. 451 ; Gagnet v. Reese, 20 Fla. 438. A Com. v. Hart, 14 Phila. 352 ; Ex parti refusal to discharge is not conclusive. Murphy, 75 Ala. 409 ; Sturtevant ». State> Application may be made to another 15 Neb. 459 ; Bonnett v. Bonnett, 61 Iowa, judge. In re Snell, 31 Minn. 110. But a 109 ; Jones v. Darnall, 103 Ind. 569. statute making such refusal conclusive, Where the coiirt is satisfied that the in» 426 CONSTITUTIONAL WMITATIONS. [CH. X. There is no common-law right to a trial by jury of the ques- tions of fact arising on habeas corpus ; but the issues both of fact and of law are tried by the court or judge before whom the pro- ceeding is had ; ^ though without doubt a jury trial might be pro- vided for by statute, and perhaps even ordered by the court in some cases.^ Right of Discussion and Petition. The right of the people peaceably to assemble, and to petition the government for a redress of grievances is one which "would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared, and the people had become so servile and debased as to be unfit to exer- cise any of the privileges of freemen."^ But it has not bee^ thought unimportant to protect this right by statutory enactments in England; and indeed it will be remembered that one of the most notable attempts to crush the liberties of the kingdom made the right of petition the point of attack, and selected for its con^ templated victims the chief officers in the Episcopal hierarchy. The trial and acquittal of the seven bishops in the reign of James II. constituted one of the decisive battles in English con- stitutional history ; * and the right wliich was then vindicated is "a sacred right which in difficult times shows itself in its full magnitude, frequently serves as a safety-valve if judiciously treated by the recipients, and may give to the representatives or other bodies the most valuable information. It may right many a wrong, and the depi'ivation of it would at once be felt by every freeman as a degradation. The right of petitioning is Indeed a necessary consequence of the right of free speech and delibera- tion, — a simple, primitive, and natural right. As a privilege it is not even denied the creature in addressing the Deity." ^ Hap- pily the occasions for discussing and defending it have not beei» terest of the child would be subserved '■' See Matter of Hakewell, 22 Engr by refusing the custody to either of the L. & Eq. 395 ; 6. c- 12 C. B. 223. parents, it may be confided to a third ' Story on the Constitution, § 1894. party. Chetwynd v. Chetwynd, L. K. 1 « See this case in 12 Howell's State P, & D. 39; In re Ooodepough, 19 Wis, Trials, 183 ; 3 Mpd. 212. Also in Broom, 274. See Matter of Heather Children, Const. Law, 408. See also the valuable 60 Mich. 261, where the guardian of their note appended by Mr, Broom, p. 493, in estate was refused the custody of their which the historical events bearing on persons. the right of petition are noted. Also, 1 See Kurd on Habeas Corpus, 297- May, Const. Hist. c. 7 ; 1 Bl. Com. 143. 302, and cases cited; Baker v. Gordon, ^ Ueber, Civil Liberty and Self.GoV' 83 Ind. 209. ernment, c. 12. CH. X.] COJISTITUTIONAL PBOTECTIONS, ETC. 427 numerous in this country, and have been confined to an exciting subject now disposed of.^ Jtigkt to hear Arms., Among the other safeguards to liberty should be mentioned the right of the people to keep and bear arms.^ A standing army is peculiarly obnoxious in any free government, and the jealousy of such an army has at times been so strongly manifested in England as to lead to the belief that even though recruited from among themselves, it was more dreaded by the people as an in- strument of oppression than a tyrannical monarch or any foreign power. So impatient did the English people become of the very army that liberated them from the tyranny of James II. that they demanded its reduction even before the liberation became com- plete ; and to this day the British Parliament render a standing army practically impossible by only passing a mutiny act from session to session. The alternative to a standing army is " a well-regulated militia ; " but this cannot exist unless the people are trained to bearing arms. The federal and State constitutions therefore provide that the right of the people to bear arms shall not be infringed ; but how far it may be in the power of the legis- lature to regulate the right we shall not undertake to say.^ Hap- pily there neither has been, nor, we may hope, is likely to be, much occasion for an examination of that question by the courts.* 1 For the discussions on the right of the statute " to prevent persons wearing petition in Congress, particularly vf ith concealed arms " was held unconstitu- reference to slavery, see 1 Benton's tional, as infringing on the right of the Abridgment of Debates, 397 ; 2 Benton's people to bear arms in defence of them- Abridginent of Debates, 57-60, 182-188, selves and of the State. But see Nunn 209, 436-444 ; 12 Benton's Abridgment of v. State, 1 Kelly, 243 ; State v. Mitchell, Debates, 660-679, 705-743; 13 Benton's 3 Blackf. 229 ; Aynetfe u. State, 2 Humph. Abridgment of Debates, 5-28, 266-290, , 154 ; State v. Buzzard, 4 Ark. 18 ; Carroll 557-562. Also Benton's Thirty Years' v. State, 28 Ark. 99 ; s. c. 18 Am. Rep. View, Vol. I. c. 135, Vol. II. c. 32, 33, 36, 538 ; State v. Jumel, 13 La. Ann. 399 ; 37. Also the current political histories 8. c. 1 Green, Cr. Rep. 481; Owen v. and biographies. The right to petition State, 31 Ala. 387 ; Cockrum v. State, 24 Congress is one of the attributes of na- Tex. 394 ; Andrews v. State, 3 Heisk. tional citizenship, and as such is under 165 ; s. c. 8 Am. Rep. 8; State v. Wilburn, the protection of the national authority. 7 Bax. 51 ; State v. Reid, 1 Ala. 612 ; United States v. Cruikshank, 92 U. S. State v. Shelby, 90 Mo. 802. A statute 542, 552, per Waite, Ch. J. No such pro- prohibiting the open wearing of arms ceeding as a petition of right to a court upon the person was held unconstitu- to determine the constitutionality of a tional in Stockdale v. State, 32 Ga. 225, statute is now recognized. In re Miller, and one forbidding carrying, either pub- 5 Mackey, 507. Holy or privately, a dirk, sword-cane, 2 I Bl. Com. 143. Spanish stiletto, belt or pocket pistol or 8 See Wilson v. State, 33 Ark. 557. revolver, was sustained, except as to the * In Bliss V. Commonwealth, 2 Lit. 90, last-mentioned weapon ; and as to that it 428 CONSTITUTIONAL LIMITATIONS. ,[CH. X. was held that, if the weapon was suita- ble for the equipment of a soldier, the right of carrying it could not be taken away. As bearing also upon the right of self-defence, see Ely v. Thompson, 3 A. E, Marsh. 73, where it was held that the statute subjecting free persons of color to corporal punishment for " lifting their hands in opposition " to a white person was unconstitutional. And see, in gen- eral, Bishop on Stat. Crimes, c. 86, and cases cited. CH. XI.J PKOTECTION BY "THE LAW OF THE LAND'" 429 CHAPTER XI. OP THE PROTECTION TO PROPERTY BY " THE LAW OF THE LAND." The protection of the subject in the free enjoyment of his life, his liberty, and his property, except as they might be declared by the judgment of his peers or the law of the land to be forfeited, was guaranteed by the twenty-ninth chapter of Magna Charta, ^' which alone," says Sir William Blackstone, " would have mer- ited the title 'that it bears of the Crreat Charter." i The people of the American States, holding the sovereignty in their own hands, have no occasion to exact pledges from any one for a due obser- vance of individual rights ; but the aggressive tendency of power is such, that they have deemed it of no small importance, that, in framing the instruments under which their governments are to be administered by their agents, they should repeat and re-enact this guaranty, and thereby adopt it as a principle of constitu- tional protection. In some form of words, it is to be found in each of the State constitutions ; ^ and though verbal differences. 1 4 BL Com. 424. The chapter, as it stood in the original charter of John, was : " Ne corpus liberi hominis capiatur nee imprisonetar nee disseisietur nee ut- lagetur nee exuletur, nee aliquo modo destruatur, nee rex eat vel mittat super eum vi, nisi per judicium parium suorum, vel per legem terras." No freeman shall be taken or imprisoned or disseised or outlawed or banished, or any ways de- stroyed, nor will the king pass upon him, or commit him to prison, unless by the judgment of his peers, or the law of the land. In the charter of Henry III. it was varied slightly, as follows : " Nullus liber homo capiatur vel imprisonetur, aut dis- seisietur de libero tenemento suo vel li- bertatibus vel liberis consuetudinibus suis, aut utlagetur aut exuletur, aut aliquo modo destruatur, nee super eum ibimus, neo super eum mittemus, nisi per legale judi- cium parium suorum, vel per legem terrse." See Blackstone's Charters. The Petition of Right — 1 Car. L c. 1 — prayed, among other things, "that no man be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent, by act of Parliament ; that none be called upon to make answer for refusal so to do ; that freemen be imprisoned or detained only by the law of the land, or by due process of law, and not by the king's special command, without any charge." The Bill of Riglits — 1 Wm. and Mary, § 2, c. 2 — was confined to an enumeration and condemnation of the illegal acts of the preceding reign ; but the Great Charter of Henry III. was then, and is still, in force. 2 The following are the constitutional provisions in the several States : — Alabama : " That, in all criminal pros- ecutions, the accused . . . shall not be compelled to give evidence against him- self, or be deprived of his life, liberty, or property, but by due course of law." Art. 1, § 7. — Arkansas : " That no person shall .... be deprived of his life, liberty, or property, without due process of law." Art. 1, § 9. — California: Similar to that of Alabama. Art. 1, § 8. — Connecticut : Same as Alabama, Art. 1, § 9. — Dekh ware : Like tliat of Alabama, substituting for " course of law," " the judgment of his peers, or the la w of the land," Art. 1, 430 CONSTITUTIONAL LIMITATIONS, [oh. XL appear in the several provisions, no change in language, it is thought, has in any case been made with a view to essential change in legal effect ; and the differences in phraseology will not, therefore, be of importance in our discussion. Indeed, the language employed is generally nearly identical, except that the phrase " due process [or course] of law " is sometimes used, sometimes " the law of the land," and in some cases both ; but the meaning is the same in every case.^ And, by the fourteenth amendment, the guaranty is now incorporated in the Constitution' of the United States.^ § 7. — Florida: Similar to that of Ala- bama. Art. 1, § 9. — Georgia t "No pe^ son shall be deprived of life« liberty, or property, except by due process of law." Art. 1, § 3. — Illinois : " No person shall be deprived of life, liberty, or property, without due process of law/' Art. 1. § 2. ■—Colorado! The same. Art. 1, §25 — /ol«a.• The same. Art. 1, § 9 -^Ken- tucky : " Nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers, or the law of the land." Art. 13, § 12 — ilfame; " Nor be deprived of his life, liberty, property, or privileges, but by tlie judgment of his peers, or the law of tlie land." Art. 1, § 6. — Jfdcy^anrf: "That no man ought to be taken or imprisoned, or disseised of his freehold, liberties, or privileges, or outlaiwed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land." Dec- laration of Kights, § 23. — Massaehusetts : " No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." Declaration of Rights, Art. 12. — MiMgdnl "No person shall ... be de- prived of life, liberty, or property, without due process of law." Art. 6, § 32 — Min- nesola : Like that of Michigan. Art. 1, § 7. — Misiiiiippt ! The saiiie. Art. 1, § 2. — Missoilfl : Same as Delaware. Art. 1, § 18.- —'Nnvada: " Nor be deprived of life, lib- erty, or property, without due process of law." Art. 1, § Si ^— New Hampshire: Same as Massachusetts. Bill of Rights, Art. l6.—Neie York: Same as Nevada. Art. 1, § t. — North Carolina: "That no person ought to be taken, imprisoned, or disseised of his freehold, liberties, of privt leges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land." Declaration of Rights, § 17.—. Pentisylmnia ! Like Delaware. Art. I, § 9.— Rhode Island : Like Delaware. Art. 1, § 10. ~-5outA Carolina; Like that of Massachusetts, substituting " person " for "subject" Art. 1, § 14 — Tennessee: " That no man shall be taken or impris- oned, or disseised of his freehold, libet^ ties, or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or tlie law of the land." Art. 1, % S. — Tetas: "No uitizen of this State shall be deprived of life, liberty, property, or privileges, out- lawed, exiled, or in any manner disfran' Chised, except by due course of the law of the land." Art. 1, § 16. — West Vir- ginia : " No person, in time of peace, shall be deprived of life, liberty, or property, without due process of law." Art. 2, § 6. Under each of the remaining constitu-.' tibns, equivalent protection to that wliioh these provisions give is believed to be afforded by fundamental principles recog- nized and enforced by the courts. 1 2 Inst. 50; Bouv. Law Die. "Due process of Law," " Law of the land ; " State V. Simons, 2 Speers, 767 ; Vanzant V. Waddell, 2 Yerg. 260; Wnlly's Heirs !). Kennedy, 2 Yerg. 554; s. o. 24 Am. Dee. 511 ; Greene v. Briggs, 1 Curt. 311 ; Murray's Lessee v. Hoboken Land Co., 18 How. 272, 276, per Curtis, 3. ; Parsons e. Russell, 11 Mich. 113, 129, per Manning, J.; Ervine's Appeal, 16 Pa, St. 288! Banning v. Taylor, 24 Pa. St. 280, 292; State «. Staten, 6 Cold. 244; Ruber tv Reily, 58 Pa. St. 112. 2 See o«te, p. 14. CH. XI.] PKOTEOTION BY " THE LAW OF THE LAND." 431 If now we shall ascertain the sense in which the phrases " due process of law " and " the law of the land " are employed in the several constitutional proyisions which we have referred to, when the protection of rights in property is had in view, we shall be able, perhaps, to indicate the rule, by which the proper conclusion may be reached in those cases in which legislative action is objected to, as not being " the law of the land ; " or judicial or ministerial action is contested as not being " due process of law," within the meaning of these terms as the Constitution employs them. If we examine, such definitions of these terms as are met with in the reported cases, we shall find them so various that some difficulty must arise in fixing upon one which shall be accurate, complete in itself, and at the same time appropriate iri all the Cases. The diversity of definition is certainly not surprising, when we consider the diversity of cases for the purposes of which it has been attempted, and reflect that a definition that is suffi- cient for one case and applicable to its facts may be altogether insufficient or entirely inapplicable in another. Perhaps no definition is more often quoted than that given by Mr. Webster in the Dartmouth College Case : " By the law of the land is most clearly intended the general law ; a law which hears before it condemns ; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land." ^ The definition here given is apt and suitable as applied to judicial proceedings, which cannot be valid unless they " proceed upon inquiry" and "render judgment only after trial." It is entirely correct, also, in assuming that a legislative enactment is not necessarily the law of the land. " The words ' by the law of the land,' as used in the Constitution, do not mean a statute passed for the purpose of working the wrong. That construction 1 Dartmouth College v. Woodward, 4 sions of the highest importance com- Wheat. 51d ; Works of Webster, Vol. V. pletely inoperative and void. It would p. 487. And he proceeds : " If this were tend directly to establish the union of ail- so, acts of attainder, bills of pains and powers in the legislature. There vfould penalties, acts of confiscation, acts revers- be no general permanent law for courts ing judgments, and acts directly trans- to administer or men to live under. The ferring one man's estate to another, administration of justice would be an legislative judgments, decrees and forfel- empty form) an idle ceremony. Judges tures in all possible forms, would be the would sit to execute legislative judgments law of the land. Such a strange construe- and decrees, not to declare the law or tion would render constitutional provi- administer the justice of the country." 432 CONSTITUTIONAL LIMITATIONS. [CH. XI, would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense. The people would be made to say to the two houses : ' You shall be vested with the legislative power of the State, but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you pass a statute for that purpose. In other words, you shall not do the wrong unless you choose to do it.' " ^ When the law of the land is spoken of, " undoubtedly a pre-existing rule of con- duct " is intended, " not an ex post facto rescript or decree made for the occasion. The design " is " to exclude arbitrary power from every branch of the government ; and there would be no exclusion if such rescripts or decrees were to take effect in the form of a statute." ^ There are nevertheless many cases in which the title to property may pass from one person to another, with- out the intervention of judicial . proceedings, properly so called ; 1 Per Branson, J., in Taylor v. Porter, 4 Hill, 140, 145. See also Jones v. Perry, 10 Yerg. 59 ; 8. o. 30 Am. Dec. 430 ; Er- vine's Appeal, 16 Pa. St. 256; Arrow- smith V. Barlingim, 4 McLean, 489; Lane v. Dorman, 4 111. 288 ; Reed v, Wright, 2 Greene (Iowa), 15; Woodcock V. Bennett, 1 Cow. 711 ; Kinney v. Bev- erley, 2 H. & M. 536 ; Commonwealth v. Byrne, 20 Gratt. 165 ; Rowan v. State, 30 Wis. 129 ; 8. c. 11 Am. Rep. 559. " Those terms, ' law of the land,' do not mean merely an act of the General Assembly. If they did, every restriction upon the legislative authority would be at once abrogated. For what more can the citi- zen suffer than to be taken, imprisoned, disseised of his freehold, liberties, and privileges ; be outlawed, exiled, and des- troyed, and be deprived of his property, his liberty, and his life, without crime ? Yet all this he may suffer if an act of the assembly simply denouncing those penal- ties upon particular persons, or a particu- lar class of persons, be in itself a law of the land within the sense of the Consti- tution ; for what is in that sense the law of the land must be duly observed by all, and upheld and enforced by the courts. In reference to the infliction of punish- ment and divesting the rights of property, it has been repeatedly held in this State, and it is believed in every other of the Union, that there are limitations upon the legislative power, notwithstanding these words; and that the clause itself means that such legislative acts as profess in themselves directly to punish persons, or to deprive the citizen of his property, without trial before the judicial tribunals, and a decision upon the matter of right, as determined by the laws under which it vested, according to the course, mode, and usages of the common law, as derived from our forefathers, are not effectually ' laws of the land ' for those purposes."- Hoke V. Henderson, 4 Dev. 15 ; s. c. 25 Am. Dec. 677. In Bank of Michigan v. Williams, 5 Wend. 478, 486, Mr. .lustice Sutherland says, vested rights "are pro- tected under general principles of para^ mount, and, in this country, of universal authority." Mr. Broom says : " It is in- deed an essential principle of the law of England, 'that the subject hath an un- doubted property in his goods and pos- sessions ; otherwise there shall remain no more industry, no more justice, no more valor ; for who will labor 1 who will haz- ard his person in the day of battle for that which is not his own ? ' The Bank- er's Case, by Tumor, 10. And therefore our customary law is not more solicitous about anything than ' to preserve the property of the subject from the inunda- tion of the perogative.' Ibid." Broom's Const. Law, 228. 2 Gibson, Ch. J., in Norman u. Heist, 5 W. & S. 171, 173. There is no power which can authorize the dispossession by force of an owner whose property has been sold for taxes, without giving him opportunity for trial. Calhoun v. Flet- cher, 63 Ala. 674. CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 433 and in preceding pages it has been shown that special legislative' acts designed to accomplish the like end, are allowable in some cases. The necessity for " general rules," therefore, is not such as to preclude the legislature from establishing special rules for particular cases, provided the particular cases range themselves under some general rule of legislative power ; nor is there any requirement of judicial action which demands that, in every case, the parties interested shall have a hearing in court.^ On the other hand, we shall find that general rules may some^ times be as obnoxious as special, if they operate to deprive indi- vidual citizens of vested rights. While every man has a right to require that his own controversies shall be judged by the same rules which are applied in the controversies of his neighbors, the whole community is also entitled, at all times, to demand the protection of the ancient principles which shield private rights against arbitrary interference, even though such interference may be under a rule impartial in its operatioiijTOsTioFiHepartial nature of the rule, so much as its arbitrary and unusual char- acter, that condemns it as unknown to the law of the land. Mr. Justice Edwards has said in one case : " Due process of law un- doubtedly means, in the due course of legal proceedings, accord- ing to those rules and forms which have been established for the protection of private rights." ^ And we have met in no judicial decision a statement that embodies more tersely and accurately the correct view of the principle we are considering, than the following, from an opinion by Mr. Justice Johnson of the Supreme Court of the United States: "As to the words from Magna Charta incorporated in the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this, — that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained 1 See Wynehamer v. People, 13 N. Y. 116, 128, in which private laws may be 378, 432, per SeMen, 3. In Janes v. Rey- passed in entire accord with the general nolds, 2 Tex. 250, Chief Justice Hemphill public rules which govern the State ; and says : " The terms ' law of the land ' . . we shall refer to more cases further on. are now, in their most usual acceptation, "^ Westervelt v. Gregg, 12 N. Y. 202, regarded as general public laws, binding 209. See, also, State I'.Staten, 6 Cold. 233; upon all the members of the community, McMillen v. Anderson, 95 U. S. 37 ; Pear- under all circumstances, and not partial son v. Yewdall, 95 U. S. 294 ; Pennoyer or private laws, affecting the rights of v. Neff, 95 U. S. 714; Davidson u.New private individuals or classes of individ- Orleans, 96 U. S. 97 j and cases in notes uals." And see Vanzant v. Waddell, 2 pp. 15, 16, ante, in which the true meaning Yerg. 260, per Peck, 3. ; Hard v. Nearing, of due process of law is considered. Also 44 Barb. 472. Nevertheless there are San Mateo County v. Southern Pacific R. many cases, as we have shown, ante, pp. E. Co., 13 Fed. Eep. 722.. 28 434 CONSTITUTIONAL LIMITATIONS. [CH. XL by the established principles of private rights and distributive justice." ^ The principles, then, upon which the process is based are to determine whether it is " due process " or not, and not any con- siderations of mere form. Administrative and remedial process may be changed from time to time, but only with due regard to the landmarks established for the protection of the citizen.^ ^JWhen the government through its established agencies interferes with the title to one's property, or with his independent enjoy- ment of it, and its action is called in question as not in accord- ance with the law of the land, we are to test its validity by those principles of civil liberty and constitutional protection which have become established in our system of laws, and not generally by rules that pertain to forms of procedure merelyTj In judicial pro- ceedings the law of the land requires a hearing before condemna- tion, and judgment before dispossession ; ^ but when property is appropriated by the government to public uses, or the legislature interferes to give direction to its title through remedial statutes, different considerations from those which regard the controversies between man and man must prevail, different proceedings are required, and we have only to see whether the interference can be justified by the established rules applicable to the special case. Due process of law in each particular case means, such an exer- tion of the powersN)f government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.* I Bank of Columbian. Okely, 4 Wheat. 2 Hurtado v. California, 110 U. S. 516. 235,244. "What is meant by ' the law » Vanzant «. Waddell, 2 Yerg. 260; of the land ' ? In this State, taking as Lenz v. Charlton, 23 Wis. 478 ; Penhoyer oar guide Zylstra^s Case, 1 Bay, 38Z ; v. NefE, 95 U. S. 714. White V. Kendrick, 1 Brev. 469 ; State v. * See Wynehamer v. People, 13 N. T. Coleman & Maxcy, 1 MoMuU. 502, there 378, 432, per Selden, 3. ; Kalloch v. Su- can be no hesitation in saying that these perior Court, 56 Cal. 229 ; Baltimore v. words mean the common law and tlie Scharf, 54 Md. 499. In State v. Allen, 2 statute law existing in this State at the McCord, 56, the court, in speaking of adoption of our constitutioh. Altogether process for the collection of taxes, say : they constitute a body of law prescribing " We think that any legal process which the course of justice to which a free man was originally founded in necessity, has is to be considered amenable for all time been consecrated by time, and approved to come." Per O'Neill, J., in State v. and acquiesced in by universal consent, Simons, 2 Speers, 761, 767. See, also^ must be considered an exception to tlie State V. Doherty, 60 Me. 509. It must right of trial by jury, and is embraced in not be understood from this, however, the alternative ' law of the land.'" To that it would not be competent to change the same effect are In re Hackett, 53 Vt. either the common law or the statute law, 354; Weimer v. Bnnbnry, 30 Mich. 201. so long as the principles therein embod- And see Hard v. Nearing, 44 Barb. 472 ; ied, and which protected private rights, New Orleans v. Cannon, 10 La. Ann. 764 ; were not departed from. McCarrol v. Weeks, 6 Hayw. 246; Sears CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 435 Private rights may be interfered with by either the legislative, executive, or judicial department of the government. The execu- tive department in every instance must show authority of law for its action, and occasion does not often arise for an examination of the limits which circumscribe its powers. The legislative department may in some cases constitutionally authorize interfer- ence, and in others may interpose by direct action. Elsewhere we shall consider the police power of the State, and endeavor to show how completely all the property, as well as all the people within the State, are subject to control under it, within certain limits, and for the purposes for which that power is exercised; The right of eminent domain and the right of taxation will als® be discussed separately, and it will appear that under each the law of the land sanctions divesting individuals of their property against their will, and by somewhat summary proceedings. In every government there is inherent authority to appropriate the property of the citizen for the necessities of the State, and con- stitutional provisions do not confer the power, though they genera ally surround it with safeguards to prevent abuse. The restraints are, that when specific property is taken, a pecuniary compensa.* tion, agreed upon or determined by judicial inquiry, must be paid ; and in other cases property can only be taken for the support of the government, and each citizen can only be required to contrib- ute his proportion to that end. But there is no rule or principle known to our system under which private property can be taken from one person and transferred to another, for the private use and benefit of such other person, whether by general law or by special enactment.-' The purpose must be public, and must have B.Cottrell, 5 Mich. 250 ; Gibson v. Mason, Lea, 441 ; Hamlin v. Mack, 83 Mich. 103; fi Nev. 283. The fourteenth amendment Stewart v. Hunter, 16 Oreg. 62. That the has not enlarged the meaning of the words owner should have notice of the sale, "due process of law." Whatever was see Varden v. Mount, 78 Ky. 86. An Buch in a State before that amendment, is act allowing an agent of a humane soci- 80 still. Hence, a statute is good which ety to condemn and kill an animal and fix allows execution on judgments against a its value conclusively without notice is town to be levied on the goods of individual not due process of law. King u. Hayes, inhabitants. Eames v. Savage, 77 Me. 80 Me. 206. But a health officer may be 212. Taking property under the taxing empowered to kill a diseased beast, if the power is due process of law. Davidson owner may afterwards contest the exist- V. New Orleans, 96 U. S. 97 ; Kelly v. ence of conditions which made the beast Pittsburgh, 104 U. S. 78 ; High v. Shoe- a nuisance, and obtain redress, if such maker, 22 Cal. 863. See, also, Cruik- conditions are not shown to have existed, shanks v. Charleston, 1 McCord, 860; Newark & S. O. Co. v. Hunt, 50 N. J. h. States. Mayhew, 2 Gill, 487 ; Harper o. 308. It is no violation of this pnnciple to Commissioners, 23 Ga. 566 ; Myers v. exclude from the State debauched women Park, 8 Heisk. 550. So is the seizure and who are being imported for improper pur- sale under proceedings prescribed by law, poses. Matter of Ah Fook, 49 Cal. 408. of stray beasts. Knoxville v. King, 7 i Lebanon Sch. Dist. u. Female Sem., 436 CONSTITUTIONAL LIMITATIONS. [CH. XL reference to the needs or convenience of the public, and no reason of general public policy will be sufficient to validate other trans- fers when they concern existing vested rights.^ Nevertheless, in many cases and many ways remedial legisla- tion may affect the control and disposition of property, and in some cases may change the nature of rights, give remedies where none existed before, and even divest legal titles in favor of sub- stantial equities where the legal and equitable rights do not chance to concur in the same persons. The chief restriction upon this class of legislation is, that vested rights must not be disturbed; but in its application as a shield of protection, the term " vested rights " is not used in any narrow or technical sense, or aa importing a power of legal con- trol merely, but rather as implying a vested interest which it is right and equitable that the government should recognize and protect, and of which the individual could not be deprived arbi- trarily without injustice. The right to private property is a sacred right ; not, as has been justly said, " introduced as the re- sult of princes' edicts, concessions, and charters, but it was the old fundamental law, springing from the original frame and con- stitution of the realm." ^ 12 AtL Rep. 857 (Pa.) ; People v. O'Brien, 111 N. Y. 1. The latter case is with ref- erence to the transfer to a receiver of the assets of a dissolved corporation. It is not competent to provide that the claim- ant or purchaser of property, for the seizure or sale of which an indemnifying bond has been taken and returned by the officer, shall be barred of any action against the oflScer, and confined to his action on the bond as his only remedy. Poule v. Mann, 53 Iowa, 42 ; Sunberg i>. Babcock, 61 Iowa, 601. See, also, Ehlers T). Stoeckle, 37 Mich. 261. Contra, Hein V. Davidson, 96 N. Y. 175. Compare Dodd V. Thomas, 69 Mo. 364. A lien may be cre- ated by statute in favor of a laborer for a contractor, as against the owner of logs, between whom and the laborer there is no privity of contract. Eeilly v. Stephen- son, 62 Mich. 509. But such laborer may not enforce a lien in spite of any contract between the contractor and owner, or of payment by the latter. John Spry Lum- ber Co. ». Sault Sav. Bank, 43 N. W. Rep. 778 (Mich.). Nor can the owner's failure to enjoin the labor be made conclusive evidence of his assent to it. Meyer v. Berlandi, 89 Minn. 448. A mechanic's lien may be made applicable to buildings in process of erection. Colpetzer i>. Trinity Church, 37 N. W. Rep. 931 (Neb,). 1 ^Taylor v. Porter, 4 Hill, 140 ; Osbofn V. Hart, 24 Wis. 89, 91 ; s. o. 1 Am. Rep. 161. In Matter of Albany Street, 11 Wend. 149, s. c. 25 Am. Dec. 618, it is in- timated that the clause in the Constitu- tion of New York, withholding private property from public use except upon compensation made, of itself implies that it is not to be taken tn invitum for indi- vidual use. And see Matter of John & Cherry Streets, 19 Wend. 659. A differ- ent opinion seems to have been held by the Supreme Court of Pennsylvania, when they decided in Harvey v. Thomas, 10 Watts, 63, that the legislature might authorize the laying out of private ways over the lands of unwilling parties, to con- nect the coal-beds with the works of pub- lic improvement, the constitution not in terms prohibiting it. See note to p. 653, post. '■' Arg. Nightingale «. Bridges, Show. 138. See also Case of Alton Woods, 1 Rep. 45 a ; Alcock v. Cooke, 5 Bing. 340 ; Bowman v. Middleton, 1 Bay, 252 ; Ken- nebec Purchase v. Laboree, 2 Me. 275 ; CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 437 But as it is a right which rests upon equities, it has its reason- able limits and restrictions ; it must have some regard to the gen- eral welfare and public policy ; it cannot be a right which is to be examined, settled, and defended on a distinct and separate consideration of the individual case, but rather on broad and gen- eral grounds, which embrace the welfare of the whole community, and which seek the equal and impartial protection of the interests of all.i And it may be well at this point to examine in the light of the reported cases the question. What is a vested right in the consti- tutional sense ? and when we have solved that question, we may be the better able to judge under what circumstances one may be justified in resisting a change in the general laws of the State affecting his interests, and how far special legislation may control his rights without coming under legal condemnation. In organ- ized society every man holds all he possesses, and looks forward to all he hopes for, through the aid and under the protection of the laws ; 2 but as changes of circumstances and of public opinion, as well as other reasons affecting the public policy, are all the while calling for changes in the laws, and as these changes must influence more or less the value and stability of private posses- sions, and strengthen or destroy well-founded hopes, and as the power to make very many of them could not be disputed without denying the right of the political community to prosper and ad- vance, it is obvious that many rights, privileges, and exemptions which usually pertain to ownership under a particular state of the law, and many reasonable expectations, cannot be regarded as vested rights in any legal sense.' In many cases the courts, in e. c. 11 Am. Dee. 79 ; ante, p. 49 and Field, J., in Dent v. West Virginia, 129 note, p. 208 and note. Any one may U. S. 114. Tlie oflSce of an attorney is acquire and hold any Bpecies of property, property, and he cannot be deprived of and the acquisition cannot be taxed as a it except for professional misconduct or privilege. But the use may be regulated proved unfitness. The public discussion to prevent injury to others. Stevens v. of the oflScial conduct of a judge is not State, 2 Ark. 291 ; s. c. 35 Am. Dec. 72. professional misconduct, unless it is de- 1 The evidences of a man's rights — signed to acquire an influence over the the deeds, bills of sale, promissory notes, conduct of the judge in the exercise of and the lilce — are protected equally with his judicial functions by the instrumen- his lands and chattels, or rights and fran- tality of popular prejudice. Ex parte chises of any kind ; and the certificate Steinman, 95 Pa. St. 220. But see State of registration and right to vote may be ». McClaugherty, 10 S. E. Eep. 407 properly included in the category. State (W. Va.). V. Staten, 6 Cold. 233. See Davies v. Mc- * " A person has no property, no vest- Keeby 5 Nev. 369. ed interest, in any rule of the common 2 The interest acquired in the practice law . . . Rights of property, which have of learned professions, that is, "the right been created by the common law, cannot to continue their prosecution," is property be taken away without due process ; but which cannot be arbitrarily taken away, the law itself, as a rule of conduct, may 438 CONSTITUTIONAL LIMITATIONS. [CH. XL the exercise of their ordinary jurisdiction, cause the property vested in one person to be transferred to another, either through the exercise of a statutory power, or by the direct force of their judgments or decrees, or by means of compulsory conveyances. If in these cases the courts have jurisdiction, they proceed in ac- cordance with " the law of the land ; " and the right of one man is devested by way of enforcing a higher and better right in an- other. Of these cases we do not propose to speak : constitutional questions cannot well arise concerning them, unless they are at- tended by circumstances of irregularity which are supposed to take them out of the general rule. All vested rights are held subject to the laws for the enforcement of public duties and pri- vate contracts, and for the punishment of wrongs ; and if they be- come devested through the operation of tliose laws, it is only by way of enforcing the obligations of justice and good order. What we desire to reach in this connection is the true meaning of the term " vested rights " when employed for the purpose of indicating the interests of which one cannot be deprived by the mere force of legislative enactment, or by any other than the re- cognized modes of transferring title against the consent of the owner, to which we have alluded. Interests in Expectancy. First, it would seem that a right cannot be considered a vested right, unless it is sometliing more than such a mere expectation as may be based upon an anticipated continuance of the present general laws : it must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another.^ Acts of the legislature, as has been well said by Mr. Justice Woodbury, cannot be regarded as opposed to fundamental axioms of legislation, " unless they impair rights which are vested ; because most civil rights are derived from public laws ; and if, before the rights become vested in particular individuals, the convenience of the State procures amendments or repeals of those laws, those individuals have no cause of com- plaint. The power that authorizes or proposes to give, may be changed at the will, or even at the sioners, 100 U. S. 548; post, 473, note, whim of the legislature, unless prevented The State may take away rights in a by constitutional limitations." Waite, public fishery by appropriating the water Ch. J., in Munn v. Illinois, 94 U. S. 113, to some other use. Howes ». Grush, 131 134. See Railroad Co. v Richmond, Mass, 207. 96 U. S. 521 ; Transportation Co, v. Chi- i Weidenger v. Spruanoe, 101 111. 278. cago, 99 U. S. 635 ; Newton if. Commis- See Wanser v. Atkinson, 43 N. J. 671. CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 439 always revoke before an interest is perfected in the donee." ^ And Chancellor Kent, in speaking of retrospective statutes, says that while such a statute, " affecting and changing vested rights, is very generally considered in this country as founded on uncon- stitutional principles, and consequently inoperative and void," yet that " this doctrine is not understood to apply to remedial statutes, which may be of a retrospective nature, provided they do not impair contracts, or disturb absolute vested rights, and only go to con&rm rights already existing, and in furtherance of the remedy by curing defects and adding to the means of enfor- cing existing obligations. Such statutes have been held valid when clearly just and reasonable, and conducive to the general welfare, even though they might operate in a degree upon exist- ing rights." 2 And it is because a mere expectation of property in the future^ is not considered a vested right, that the rules of descent are held subject to change in their application to all estates not already passed to the heir by the death of the owner. No one is heir to the living ; and the heir presumptive has no other reason to rely upon succeeding to the property than the promise held out by the. statute of descents. But this promise is no more than a declare ation of the legislature as to its present view of public policy as regards the proper order of succession,-— ^ a view which may at any time change, and then the promise may properly be with- drawn, and a new course of descent be declared. The expecta^ tion is not property ; it cannot be sold or mortgaged ; it is not subject to debts ; and it is not in any manner taken notice of by the law until the moment of the ancestor's death, when the stat- ute of descents comes in, and for reasons of general public policy transfers the estate to persons occupying particular relations to the deceased in preference to all others. It is not until that moment that there is any vested jight in the person who becomea heir, to be protected by the Constitution. An anticipated inter- est in property cannot be said to be vested iu any person so long as the owner of the interest in possession has full power, by virtue of his ownership, to cut off the expectant right by grant. or devise.* 1 Merrill v. Sherbam/e, 1 N. H. 1Q9, 23 N. H. 37Q, 382; Foule v. Mann, 53 213 ; s. c. 8 Am. Deo. 52. See Rich v. Iowa, 42. Flanders, 89 N. H. 304. And cases ante^ » In re Lawrence, 1 Redfleld, Sur. Rep. p. 343, note 2. 310. But after property has pnce vested 2 1 Kent, Cora. 455. See Briggs v. under the laws of descent, it cannot be Hubbard, 19 Vt. 86 ; Bridgeport v. Hou- devested by any change in those laws. satonicR. B. Co., 15Conn. 475; Baugher Norman ». Heist, 5 W- & S. 171. And ». Nelson, 9 Gill, 299 ; Qilman v. Quits, the right to change the law of descents in 440 CONSTITUTIONAL LIMITATIONS. [CH. XI. If this be so, the nature of estates iriust, to a certain extent, be subject to legislative control and modification.^ In this country estates tail have been very generally changed into estates in fee- simple, by statutes the validity of which is not disputed.^ Such statutes operate to increase and render more valuable the interest which the tenant in fail possesses, and are not tlierefore open to objection by him.^ But no other person in these cases has any vested right, either in possession or expectancy,, to be affected by such change ; and the expectation of the heir presumptive must be subject to the same control as in other cases.* The cases of rights in property to result from the marriage relation must be referred to the same principle. At the common law the husband immediately on the marriage succeeded to cer- tain rights in the real .and personal estate which the wife then possessed. These rights became vested rights at once, and any subsequent alteration in the law could not take them away.* But other interests were merely in expectancy. He could have a right as tenant by the courtesy initiate in the wife's estates of inheritance the moment a child was born of the marriage, who might by possibility become heir to such estates. This right would be property, subject to conveyance and to be taken for debts ; and must therefore be regarded as a vested right, no more subject to legislative interference than other expectant interests which have ceased to be mere contingencies and become fixed. But while this interest remains in expectancy merely, — that is to say, until it becomes initiate, — the legislature must have full right to modify or even to abolish it.'' And the same rule will the case of the estate of a person named ant at the common law has a right to do, without his consent being had, was denied by conveying his interest to a stranger. in Beall v. Beall, 8 Ga. 210. See post, pp. See Bombaugh v. Bonibaugh, U S. & R. 465, 466, and notes. 192; Wildes v. Vanvoorhis, 15 Gray, 139. 1 Smith on Stat, and Const. Construe- * See 1 Washb. Real Pr. 81-84 and tion, 412, notes. The exception to this statement, 2 De Mill V. Lockwood, 3 Blatch. 56. if any, must be the case of tenant in tail The legislature may by special act con- after possibility of issue extinct ; where firm a conveyance in fee simple by a ten- the estate of the tenant has ceased to be ant in tail. Comstock v. Gay, 51 Conn, an inheritance, and a reversionary right 45. has become vested. ' On the same ground it has been held ^ Westervelt v. Gregg, 12 N. Y. 202. in Massachusetts that statutes converting See Mr. Bishop's criticism of this case — existing estates in joint tenancy into es- which, however, does not reach the gen- tates in common were unobjectionable, era! principle above stated — in 2 Bishop, They did not impair vested rights, but Law of Married Women, § 46, and note, rendered the tenure more beneficial. Hoi- Rights under an ante-nuptial contract, brook V. Finney, 4 Mass. 565 ; s. c. 3 which become vested by the marriage, Am. Deo. 243 ; Miller v. Miller, 16 Mass. cannot be impaired by subsequent legis- 59 ; Annable v. Patch, 3 Pick. .360 ; Burg- lation. Desnoyer v. Jordan, 27 Minn, hardt v. Turner, 12 Pick. 533. Moreover, 295. Such statutes do no more than either ten- ° Hathon v. Lyon, 2 Mich. 93; Tong CH. XI.] PllOTECTION BY "THE LAW OF THE LAND." 441 apply to the case of dower ; though the difference in the requi- sites of the two estates are such that the inchoate right to dower does not become property, or anything more than a mere expec- tancy at any time before it is consummated by the husband's death.i In neither of these cases does tlie marriage alone give a V. Marvin, 15 Mich. 60. And see the cases cited in the next note. Tlic right of a tenant by the courtesy initiate is Tested, and it cannot be taken away to the injury of the husband's creditors. Wyatt V. Smith, 26 W. Va. 813. See Bershizer v. Florence, 39 Oliio St. 516. But see to the contrary. Breeding v. Davis, 77 Va. 639 ; Alexander v. Alex- ander, 7 S. E. Rep. 335 (Va.). 1 When dower is duly assigned it be- comes a right not to be devested by subse- quent legislation. Talbot v. Talbot, 14 K. I. 57. The law in force at the death of the husband is the measure of the right of the widow to dower. Noel v. Ewing, 9 Ind. 37 j May v. Fletcher, 40 Ind. 575 ; Lucas v. Sawyer, 17 Iowa, 517 ; Sturdevant v. Norris, 30 Iowa, 65 ; Mel- izet's Appeal, 17 Pa. St. 449 ; Barbour v. Barbour, 46 Me. 9 ; Magee v. Young, 40 Miss. 164; Bates v. McDowell, 58 Miss. 815 ; Walker v. Deaver, 5 Mo. App. 139 ; Guerin v. Moore, 25 Minn. 462 ; Morrison V. Bice, 35 Minn. 436 ; Ware r. Owens 42 Ala. 212 ; Pratt v. TefCt, 14 Mich. 191 ; Bennett a. Harms, 51 Wis. 251. But if we apply this rule universally, we shall run into some absurdities, and most cer- tainly in some cases encounter difficultiei which will prove insurmountable. Sup- pose the land has been sold by the hus band without relinquishment of dower, and the dower right is afterwards by statute enlarged, will the wife obtain the enlarged dower at the expense of the purchaser ? Or suppose it is diminished ; will the purchaser thereby acquire an enlarged estate which he never bought or paid for ? These are important ques- tions, and the authorities furnish very uncertain and unsatisfactory answers to them. In Illinois it is held that though the estate is contingent, the right to dower, when marriage and seisin unite, is vested and absolute, and is as completely beyond legislative control as is the prin- cipal estate. Russell v. Kumsey, 35 III. 362; Steele v. Gellatly, 41 III. 39. See Xawrence v. Miller, 2 N. Y. 245. But it is also held that after marriage a new riglit corresponding to dower may be con- ferred upon the husband, and that his homestead riglit depends on the law in force at the wife's death. Henson v. Moore, 104 111. 403. In North Carolina before 1867, the wife had dower only in the lands of which the husband' died seised; the statute then restored the common-law right to dower. Held to be inapplicable to lands which the husband had previously acquired. Sutton v. As- ken, 66 N. C. 172 ; s. o. 8 Am. Rep. 500; Hunting v. Johnson, 66 N. C. 189 ; Jen- kins V. Jenkins, 82 N. C. 202 ; O'Kelly v. Williams, 84 N. C. 281. In Iowa it is held that when the law of dower is changed after the husband has conveyed lands subject to the inchoate right, the dower is to be measured by the law in force when the conveyance was made. Davis V. O'Ferrall, 4 Greene (Iowa), 168 ; Young V. Wolcott, 1 Iowa, 174 ; O'Fer- rall V. Simplot, 4 Iowa, 381; Moore v. Kent, 37 Iowa, 20 ; Craven v. Winter, 38 Iowa, 471. In Indiana, on the other hand, a statute enlarging the right of dower to one-third of the land in fee simple was so applied as to deprive the widow, in cases where the husband had previously con- veyed, of both the statutory dower and the dower at the common law, thereby enlarging the estate of the purchaser, ^rong t'. Clem, 12 Ind. 37; Logan v. Walton, 12 Ind. 839 ; Bowen v. Preston, 48 Ind. 367 ; Taylor v. Sample, 61 Ind. 423. See May v. Fletcher, 40 Ind. 57^. A provision that upon a judicial sale ot the husband's property the inchoate dower right shall vest does not apply to a me- chanic's lien resting on the whole prop- erty before the act passed. Buser v. Shepard, 107 Ind. 417. In Missouri it is held that the widow takes dower ac- cording to the law in force at the hus- band's death, except as against those who had previously acquired specific rights in the estate, and as to them her right must depend on the law in force at the time their rights originated. Kennedy v. 442 CONSTITUTIONAL LIMITATIONS. [OH. XL vested right. It gives only a capacity to acquire a right. The same remark may be made regarding the husband's expectant interest in the after-acquired personalty of the wife ; it is subject to any changes in the law made before his right becomes vested by the acquisition.^ Change of Remedies. Again : the right to a particular remedy is not a vested right. This is the general rule ; and the exceptions are of those peculiar cases in which the remedy is part of the right itself .^ As a gen- eral rule, every State has complete control over the remedies which it offers to suitors in its courts.^ It may abolish one class of courts and create another. It may give a new and additional remedy for a right or equity already in existence.* And it may Insurance Co., 11 Mo. 204. In Williaras V. Courtney, 77 Mo. 587, it is held that, marriage and seisin concurring, dower cannot be barred by a guardian's sale of the husband's property. In Massachu- setts doubt is expressed of the right of the legislature to cut off the inchoate right of dower. Dunn v. Sargent, 101 Mass. 336, 840. But in Hamilton i>. Hirscb, 2 Wash. Terr. 223, such power is affirmed. 1 Westervelt v. Gregg, 12 N. Y. 202; Norris V. Beyea, 13 N. Y. 273 ; Kelly v. McCarthy, 3 Bradf. 7. And see Plumb V. Sawyer, 21 Conn. 351 ; Clark v. Mc- Creary, 12 S. & M. 347 ; Jackson v. Lyon 9 Cow. 664 ; ante, pp. 347-355. On the point whether the husband can be re- garded as having an interest in the wife's choses in action, before he has reduced them to possession, see Bishop, Law of Married Women, Vol. IL §§ 45, 46. It the wife has a right to personal property subject to a contingency, the husband's contingent interest therein cannot be taken away by subsequent legislation. Dunn V. Sargent, 101 Mass. 336. It is competent to provide by statute that married women shall hold their property free from claims of husbands, and to make the law apply to those already married. Kugh v. Ottenheimer, 6 Oreg. 231; s. 0. 26 Am. Rep. 513. See Prit- chard ». Citizens' Bank, 8 La. 130 ; s. c. 23 Am. Dec. 132. But vested rights be- longing to the husband jure uxoris cannot thus be devested. Hershizer v. Florence, 39 Ohio St. 516; Koehler v. Miller, 21 111. App. 557. ^ See ante, p. 351, and cases cited. It has been held in some cases that the giving of a lien by statute does not con- fer a vested right, and it may be taken away by a repeal of the statute. See ante, 347, note 2. ' Rosier v. Hale, 10 Iowa, 470 ; Smith V. Bryan, 34 111. 364; Lord v. Chad- bourne, 42 Me. 429; Rockwell v. Hub- bell's Adm'rs, 2 Doug. (Mich.) 197; Cusic V. Douglas, 3 Kan. 123 ; Holloway 1/. Sherman, 12 Iowa, 282; McCormick V. Busch, 15 Iowa, 127; McArthur v. Goddin, 12 Bush, 274 ; Grundy v. Com- monwealth, 12 Bush, 350; Briscoe o. Anketell, 28 Miss. 361. * Hope B. Johnson, 2 Terg. 125 ; Fos- ter V. Essex Bank, 16 Mass. 245 ; s. c. 9 Am. Dec. 168 ; Paschall v. Whitsett, 11 Ala. 472 ; Commonwealth v. Commis- sioners,' &c., 6 Pick. 501 ; Whipple v. Farrar, 3 Mich. 436; United States ». Samperyao, 1 Hemp. 118; Sutherland ». De Leon, 1 Tex. 250 ; Anonymous, 2 Stew. 228. See also Lewis v. McElvain, 16 Ohio, 347 ; Trustees, &c. u. McCaughey, 2 Ohio St. 152 ; Hepburn v. Curts, 7 Watts, 300 ; Schenley v. Commonwealth, 36 Pa. St. 29; Bacon v. Callender, 6 Mass. 303; Brackett v. Norcross, 1 Me. 92 ; Ralston V. Lothain, 18 Ind. 303; White School House V. Post, 81 Conn. 241 ; Van Rens- selaer V. Hayes, 19 N. Y. 68; Van Rens- selaer V. Ball, 19 N. Y. 100 ; Sedgwick Co. B. Bunker, 16 Kan. 498 ; Danville v. Pace, 25 Gratt. 1. Thus it may give a legal remedy where before there was only one in equity. Bartlett v. Lang, 2 Ala. 401. CH. XI.J PROTECTION BY " THE LAW OF THE LAND." 443 abolish old remedies and substitute new ; or even without sub- stituting any, if a reasonable remedy still remains.^ If a statute providing a remedy is repealed while proceedings are pending, such proceedings will be thereby determined, unless the legisla- ture shall otherwise provide ;2 and if it be amended instead of repealed, the judgment pronounced in such proceedings must he according to the law as it then stands.^ And any rule or regu- lation in regard to the remedy which does not, under pretence of modifying or regulating it, take away or impair the right itself, cannot be regarded as beyond the proper province of legislation.* But a vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference.^ Where it springs from contract^ or from the principles of the common law, it is not competent for the legislature to take it away.^ And every man is entitled to a In Bolton v. Johns, 5 Pa. St. 145, the ex- treme ground was taken tliat the legis- lature might give a lien on property for a prior debt, where no contract would be violated in doing so. In Tbwle ». East- em Kailroad, 18 N. H. 546, the power of the legislature to give retrospectively a remedy for consequential damages caused by the taking of property for a public use was denied. On the ground that the rem- edy only is affected, a judgment against a principal on an existing bond may be made conclusive on the surety. Pickett V. Boyd, 11 Lea, 498. So a resale on mortgage foreclosure, if the purchase price is inadequate, may be allowed as to an existing mortgage ; Chafle v. Aaron, 62 Miss. 29 ; and a foreclosure of a tax lien, if the title fails. Schoenheit v. Nel- son, 16 Neb. 285. 1 Stocking I). Hunt, 3 Denio, 274; Van Bensselaer v. Read, 26 N. Y. 558 ; Lennon V. New York, 55 N. Y. 861 ; Parker v. Shannohouse, 1 Phil. (N. C.) 209. An existing remedy may be modified and the modified remedy made applicable to ex- isting rights. Phelps' Appeal, 98 Pa. St. 546. 2 Bank of Hamilton v. Dudley, 2 Pet. 492; Ludlow v. Johnson, 8 Ohio, 553; s. c. 17 Am. Dec. 609 ; Yeaton v. United States, 5 Cranch, 281 ; Schooner Rachel 1). United States, 6 €ranch, 829. If an act is repealed without any saving of rights, no judgment can afterwards be taken under it. State v. Passaic, 36 N. J. •382; Menard County v. Kincaid, 71 III. 587 ; Musgrove w. Vieksburg, &c. R. R. Co., 50 Miss. 677 ; Abbott v. Common- wealth, 8 Watts, 517 ; s. c. 34 Am. Dec. 492. But it is well said in Pennsylvania that before a statute should be construed to take away the remedy for a prior in- jury, it should clearly appear that it em- braces the very case. Chalker v. Ives, 55 Pa. St. 81. And see Newsom a. Green- wood, 4 Oreg. 119. ' See cases cited in last note. Also Commonwealth v. Duane, 1 Binney, 601 ; 8. c. 2 Am. Dec. 497 ; United States v. Passmore, 4 Dall. 372 ; Patterson v. Phil- brook, 9 Mass. 161 ; Commonwealth v. Marshall, 11 Pick. .350; Commonwealth V. Kimball, 21 Pick. 373; Hartung v. People, 22 N. Y. 95 j State v. Daley, 29 Conn. 272 ; Rathbun v. Wheeler, 29 Ind. 601; State i>. Norwood, 12 Md. 195; Bristol a. Supervisors, &c., 20 Mich. 95 ; Sumner v. Miller, 64 N. C. 688. * See ante, pp. 847-355; Lennon v. New York, 55 N. Y. 361. The right to a particular mode of procedure is not a vested right. A statute allowing attor- ney's fees may affect pending causes. Drake v. Jordan, 73 Iowa, 707. * It is not incompetent, however, to compel the party instituting a suit to pay taxes on the legal process as a condition. Harrison v. Willis, 7 Heisk. 35; b. c. 19 Am. Rep. 604. 6 Dash V. Van Kleeck, 7 Johns. 477 ; s. c. 5 Am. Dec. 291 ; Streubel v. Mil- waukee & M. R. R. Co., 12 Wis. 67; Clark V. Clark, 10 N. H. 380; Westervelt 444 CONSTITUTIONAL LIMITATIONS* [CH. XL certain remedy in the law for all wrongs against his person or his property, and cannot be compelled to buy justice, or to submit to conditions not imposed upon his fellows as a means of obtaining it.i Nor can a party by his misconduct so forfeit a right that it may be taken from him without judicial proceedings in which the forfeiture shall be declared in due form. Forfeitures of rights and property cannot be adjudged by legislative act, and confiscations without a judicial hearing after due notice would be void as not being due process of law.^ Even Congress, it has V. Gregg, 12 N. Y. 202; Thornton v. Turner, 11 Minn. S39; Ward o. Barnard, 1 Aik. 121 ; Keith v. Ware, 2 Vt. 174 ; Lyman v. Mower, 2 Vt. 617 ; Kendall v. Dodge, 3 Vt. 360 ; State v. Auditor, &c., 33 Mo. 287; Griffin v. Wilcox, 21 Ind. 370; Norris v. Doniphan, 4 Met. (Ky.) 385 ; Terrill v. Rankin, 2 Bush, 453 ; Wil- liar V. Baltimore, &c. Association, 45 Md. 646 ; Dunlap v. Toledo, &c. Ey. Co., 60 Mich. 470. The legislature cannot inter- fere with the enforcement of a judgment by enactments subsequent to it. Straf- ford V. Sharon, 17 Atl. Bep. 793 (Vt.). An act of the Dominion Parliament of Canada, assuming to authorize a railroad company to issue bonds in substitution for others previously issued, and at a lower rate of interest, and declaring that the holders should be deemed to assent, wag held void, because opposed to the fundamental principles of justice. Geb- hard v. Railroad Co., 17 Blatch. 416. An equitable title to lands, of which the legal title is in the State, is under the same constitutional protection that the legal title would be. Wright v. Hawkins, 28 Tex. 452. Where an individual is al- lowed to recover a sum as a penalty, the rigltt may be taken away at any time be- fore judgment. Fierce v. Kimball, 9 Me. 64 ; 8. c. 23 Am. Dec. 637 ; Oriental Bank V. Freeze, 18 Me. 109 ; Engle v. Schurtz, 1 Mich. 150; Confiscation Cases, 7 Wall. 454 ; Washburn v. Franklin, 35 Barb. 599 ; Welch v. Wadsworth, 30 Conn. 149; O'Kelly V. Athens Manuf Co., 36 6a. 51 ; United States v. Tynen, 11 Wall. 88 ; Chicago & Alton B. R. Co. v. Adier, 66 III. 344; Van Inwagen v. Chicago, 61 111. 31 ; Lyon i). Morris, 15 Ga. 480 ; post, p. 472. See also Curtis v. Leavitt, 17 Barb. 309, and 15 N. Y. 9; Coles v. Madison County, Breese, 116; s. c. 12 Am. Dec. 161 ; Farmelee e. Lawrence, 48 111. 331 ; post, pp. 461, 462. The legislature may re- mit penalties accruing to a county. State V. Baltimore, &c. R. R. Co., 12 Gill & J. 399; 8. c. 38 Am. Dec. 317. "Whether claims arising in tort are protected against State legislation by the federal Constitu- tion, see State v. New Orleans, 32 La. Ann. 709; Langford v. Fly, 7 Humph. 685 ; Parker v. Savage, 6 Lea, 406 ; Grif- fin V. Wilcox, 21 Ind. 370; Johnson v. Jones, 44 111. 142; Drehman v. Stifel, 41 Mo. 184; 8 Wall. 596. See cases ante, p. 351, note 3. 1 Thus, a person cannot be precluded by test oaths from maintaining suits. McFarland v. Butler, 8 Minn. 116 ; ante, p. 350, note. Before attacking a tax deed, payment of tases and value of improve- ments may be required. Coats v. Hill, 41 Ark. 149. See Coonradt v. Myers, 31 Kan. 30; Lombard v. Antioch College, 60 Wis. 469. But free recourse to the courts is denied, if a deposit of double the amount of the purchase-money and all taxes, &c., is required before suit. Lassiter v. Lee, 68 Ala. 287. See post, pp. 452, 463, note. ^ Griffin v. Mixon, 38 Miss. 424. See next note. Also Rison v. Farr, 24 Ark. 161 ; Woodruff v. Scruggs, 27 Ark. 26 ; Hodgson V. Mill ward, 3 Grant's Cas. 406 ; leck V. Anderson, 67 Cal. 251, a case of forfeiting nets for illegal fishing ; Boor- man V. Santa Barbara, 65 Cal. 313, a case of assessing benefits upon lands for improvements without notice. But no constitutional principle is violated byNi statute which allows judgment to be en- tered up against a defendant who has been served with process, unless within a certain number of days he files an affi- davit of merits. Hunt v. Lucas, 97 Mass. 404. Nor by an ordinance allowing a city, on default of the owner, to build a side- walk and charge the property with the CH. XI.] PROTECTION BY " THE LAW OF THE LAND.' 445 been held, has no power to protect parties assuming to act under the authority of the general government, during the existence of a civil war, by depriving persons illegally arrested by them of all redress in the courts.^ And if the legislature cannot confiscate property or rights, neither can it authorize individuals to assume at their option powers of police, which they may exercise in the condemnation and sale of property offending against their regu- lations, or for the satisfaction of their charges and expenses in its management and control, rendered or incurred without the consent of its owners.^ And a statute which authorizes a party expense, if when sued on the tax bill, he has his day in court. Kansas City V. Huling, 87 Mo. 203. An act subjecting a prisoner's property from the time of his arrest to a lien for the fine and costs, is valid. Silver Bow Co. v, Strombaugh, 22 Pac. Kep. 463 (Mont.). 1 Griffin b. Wilcox, 21 Ind. 370. In this case the act of Congress of March 3, 186.3, which provided " that any order of the President or under his authority, made at any time during the existence of the present rebellion, shall be a defence in all courts, to any action or prosecution, civil or criminal, pending or to be com- menced, for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of Congress " was held to be uncon- stitutional. The same decision was made in Johnson v. Jones, 44 lU. 142. It was said in the first of these cases that " this act was passed to deprive the citizens of all redress for illegal arrests and imprison- ment ; it was not needed as a protection for making such as are legal, because the common law gives ample protection for making legal arrests and imprisonments." And it may be added that those acts which are justified by military or martial law are equally legal with those justified by the common law. So in Hubbard v. Brainerd, 86 Conn. 563, it was decided that Congress could not take away a vested right to sue for and recover back an illegal tax which had been paid under protest to a collector of the national reve- nue. See also Bryan v. Walker, 64 N. C. 141. Nor can the right to have a void tax sale set aside be made conditional on the payment of the illegal tax. Wilson V. McKenna, 52 III. 43, and other cases cited, post, p. 454, note. The case of Nor- ris V. Doniphan, 4 Met. (Ky.) 385, may properly be cited in this connection. It was there held that the act of Congress of July 17, 1862, " to suppress insurrec- tion, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes," in so far as it undertook to authorize the confisca- tion of the property of citizens as a pun- ishment for treason and other crimes, by proceedings 2n rem in any district in which the property might be, without presentT ment and indictment by a grand jury, without arrest or summons of the owner, and upon such evidence of his guilt only as would be proof of any fact in admi- ralty or revenue cases, was unconsti- tutional and void, and therefore that Congress had no power to prohibit the State courts from giving the owners of property seized the relief they would be entitled to under the State laws. A statute which makes a constitutional right to vote depend upon an impossible con- dition is void. Davies v, McKeeby, 5 Nev. 309. See further. State v. Staten, 6 Cold. 233 ; Risen v. Parr, 24 Ark. 161 ; Hodgson V. Millward, 8 Grant, 406. Where no express power of removal is conferred on the executive, he cannot declare an office forfeited for misbeha- vior ; but the forfeiture must be declared in judicial proceedings. Page v. Hardin, 8 B. Monr. 648; State v. Prichard, 36 N. J. 101. The legislature cannot declare the forfeiture of an official salary for mis- conduct. Ex parte TuUy, 4 Ark. 220; s. c 38 Am. Dec. 33. ^ The log-driving and booming cor- porations, which were authorized to be formed under a general law in Michigan, were empowered, whenever logs or lum- ber were put into navigable streams with- out adequate force and means provided 446 CONSTITUTIONAL LIMITATIONS. [CH. XI. to seize tlie property of another, without process or warrant, and to sell it without notification to the owner, for the punishment of a private trespass, and in order to enforce a penalty against the owner, can find no justification in the Constitution.^ for preventing obstructions, to take charge of the same, and cause it to be run, driven, boomed, &c., at the owner's expense ; and it gave them a lien on tlie same to satisfy all just and reasonable charges, with power to sell the property for those charges and for the expenses of sale, on notice, either served personally on tlie owner, or posted as therein provided. In Ames V. Port Huron Log-Driving and Booming Co., 11 Mich. 139, 147, it was held that tlie power which this law as- sumed to confer was in the nature of a public office ; and Campbell, J., says : " It is difficult to perceive by what process a public office can be obtained or exercised without either election or appointment. The powers of government are parcelled out by the Constitution, which certainly contemplates some official responsibility. Every officer not expressly exempted is required to take an oath of office as a preliminary to discharging bis duties. It is absurd to suppose that any official power can exist in any person by his own assumption, or by the employment of some other private person ; and still more so to recognize in such an assumption a power of depriving individuals of their property. And it is plain that the exercise of such a power is an act in its nature public, and not private. The case, however, involves more than tlie assumption of control. The corporation, or rather its various agents, must of necessity determine when the case arises justifying interference; and having assumed possession it assesses its own charges ; and having assessed them, proceeds to sell the property seized to pay them, with the added expense of such sale. These proceedings are all ex parte, and are all proceedings in invitum. Their validity must therefore be deter- mined by the rules applicable to such cases. Except in those cases where pro- ceedings to collect the public revenue may stand upon a peculiar footing of their own, it is an Inflexible principle of constitutional right that no person can legally be devested of his property with- out remuneration, or against his will, unless he is allowed a hearing before an impartial tribunal, where he may contest the claim set up against him, and be al- lowed to meet it on the law and tlie facts. When his property is wanted in specie, for public purposes, there are methods assured to him whereby its value can be ascertained. Where a debt or penalty or forfeiture may be set up against him, the determination of his liability becomes a judicial question ; and all judicial func- tions are required by the Constitution to be exercised by courts of justice, or judi- cial officers regularly chosen. He can only be reached through the forms of law upon a regular hearing, unless he has by contract referred the matter to another mode of determination." 1 A statute of New York authorized any person to take into his custody and possession any animal which might be trespassing upon his lands, and give no- tice of the seizure to a justice or commis- sioner of highways of the town, who should proceed to sell the animal after posting notice. From the proceeds of the sale, the officer was to retain his fees, pay the person taking up the animal fifty cents, and also compensation for keeping it, and the balance to the owner, if he should claim it within a year. In Rock- well V. Nearing, 85 N. Y. 307, 308, PoHer, J., says of this statute : " The legisla- , ture has no authority either to deprive the citizen of his property for other than public purposes, or to authorize its sei- zure without process or warrant, by per- sons other than the owner, for the mere punishment of a private trespass. So far as the act in question relates to animals trespassing on the premises of the captor, the proceedings it authorizes have not even the mocking semblance of due pro- cess of law. The seizure may be pri- vately made; the party making it is permitted to conceal the property on his own premises ; he is protected, though the trespass was due to his own conniv- ance or neglect ; he is permitted to take what does not belong to him without notice to owner, though that owner is near and known ; he is allowed to sell, through the intervention of an officer, and CH. XL] PROTECTION BY " THE LAW OF THE LAND." 447 Limitation Laws. Notwithstanding the protection which the law gives to vested rights, it is possible for a party to debar himself of the right to assert the same in the courts, by his own negligence or laches. If one who is dispossessed " be negligent for a long and unreason- able time, the law refuses afterwards to lend him any assistance to recover the possession merely, both to punish his neglect(wam leges vigilantibus, non dormientibus subveniunt), and also because it is presumed that the supposed wrong-doer has in such a length of time procured a legal title, otherwise he would sooner have been sued." ^ Statutes of limitation are passed which fix upon a reasonable time within which a party is permitted to bring suit for the recovery of his rights, and which, on failure to do so, es- tablish a legal presumption against him that he has no rights in the premises. Such a statute is a statute of repose.^ Every gov- ernment is under obligation to its citizens to afford them all need- ful legal remedies ; ^ but it is not bound to keep its courts open indefinitely for one who neglects or refuses to apply for redress until it may fairly be presumed that the means by which the other party might disprove his claim are lost in the lapse of time.* without even the form of judicial pro- able, and not favored; but Mr. Justice ceedingB, an animal in which he has no Story has well said, it has often been interest by way either of title, mortgage, matter of regret in modern times that the pledge, or lien ; and all to the end that decisions had not proceeded upon princi- he may receive compensation for detain- pies better adapted to carry into effect ing it without the consent of the owner, the real objects of the statute ; that in- and a fee of fifty cents for his services stead of being "viewed in an unfavorable as an informer. He levies without pro- light as an unjust and discreditable de- cess, condemns without proof, and sells fence, it had not received such support as without execution." And he distinguishes would have made it what it was intended these proceedings from those in distrain- to be, emphatically a statute of repose, ing cattle damage feasant, which are al- It is a wise and beneficial law, not de- ways remedial, and under which the party signed merely to raise a presumption of is authorized to detain the property in payment «f a just debt from lapse of time, pledge for the payment of his damages, but to afford security against stale de- See also opinion by ilfor^on, J., in the same mands after the true state of the trans- case, pp. 314^317, and the opinions of the action may have been forgotten, or be several judges in Wynehamer v. People, incapable of explanation by reason of the ] 3 N. Y. 396, 419, 434, and 468. Compare death or removal of witnesses. Bell u. Campbell u. Evans, 45 N. Y. 356 ; Cookw. Morrison, 1 Pet. 351, 360. See LeflSng- Gregg, 46 N. Y. 439 ; Grover v. Huekins, well v. Warren, 2 Black, 599 ; Toll v. 26 Mich. 476 ; Campau v. Langley, 39 Wright, 37 Mich. 93. Mich. 451 ; s. c. 33 Am. Rep. 414. » Call v. Hagger, 8 Mass. 423. 1 3 Bl. Com. 188; Broom, Legal Max- * Beal v. Nason, 14 Me. 844; Bell v. ims 857. Morrison, 1 Pet. 351 ; Stearns «. Gittings, "' Such a statute was formerly con- 23 III. 387 ; State v. Jones, 21 Md. 432. strued with strictness, and the defence See Biddle v. Hooven, 120 Pa. St. 221. under it was looked upon as unconsoion- 448 CONSTITUTIONAL LIMITATIONS. [CH. XI, When the period prescribed by statute lias once run, so as to cut off the remedy which one might have had for the recovery of property in the possession of another, the title to the property, irrespective of the original right, is regarded in the law as vested in the possessor, who is entitled to the same protection in respect, to it which the owner is entitled to in other cases. A subsequent repeal of the limitation law could not be given a retroactive effect, so as to disturb this title.^ It is vested as completely and perfectly, and is as safe from legislative interference as it would have been had it been perfected in the owner by grant, or by any species of assurance.^ 1 Brent v. Chapman, 5 Cranch, 358; Newby's Adm'rs v. Blakey, 3 H. & M. 67 ; Parish v. Eager, 15 Wis. 532 ; Bagg's Ap- peal, 48 Pa. St. 512; Lefflngwell v. War- ren, 2 Black, 599 ; Biuknell v. Comstock, 113 U. S. 149. See cases cited in next note. 2 Although there is controversy on this point, we consider the text fully war- ranted by the following cases : Holden v. James, 11 Mass. 396; Wright v. Oakley, 5 Met. 400 ; Lewis v. Webb, 3 Me. 326 ; Atkinson v. Dunlap, 60 Me. Ill ; Davis V. Minor, 2 Miss. 183 ; s. c. 28 Am. Dec. 826 ; Hicks o. Steigleman, 49 Miss. 377 ; Enox V. Cleveland, 13 Wis 245 ; Sprecker V. Wakeley, 11 Wis. 432; Pleasants v. Bohrer, 17 Wis. 577 ; Moor v. Luce, 29 Pa. St. 260; Morton v. Sharkey, Mc- Cahon, 113; McKinney v. Springer, 8 Blaekt. 506 ; Bradford ». Brooks, 2 Aik. 284; 8. 0. 16 Am. Dec. 715; Stipp v. Brown, 2 Ind. 647; Briggs ». Hubbard, 19 Vt. 86; Wires v. Farr, 25 Vt. 41; Woart V. Winnick, 3 N. H. 473 ; a. o. 14 Am. Dec. 384; Rockport a. Walden, 54 N. H. 167 ; s. o. 20 Am. Rep. 131 ; Thomp- son B. Caldwell, 3 Lit. 137 ; Couch v. Mc- Kee, 6 Ark. 495 ; Reynolds v. Baker, 6 Cold. 221 ; Trim v. McPhei-son, 7 Cold. 16 ; Girdner v. Stephens, 1 Heisk. 280 ; 8. c. 2 Am. Rep. 700 ; Yancy v. Yaney, 5 Heisk. 353; s. c. 18 Am. Rep. 5; Brad- ford v. Shine's Ex'rs, 13 Fla. 393 ; s. c. 7 Am. Rep. 2.39 ; Loekhart u.Horn, 1 Woods, 628 ; Horbach v. Miller, 4 Neb. 31 ; Pit- man V. Bump, 5 Oreg. 17 ; Thompson e. Bead, 41 Iowa, 48 ; Reformed Church v. Schoolcraft, 65 N. Y. 134 ; Union Savings Bank v. Taber, 13 K. I. 683 ; McDuffee V. Sinnott, 119 III. 449. In some cases an inclination has been manifested to dis- tinguish between the case of property adversely possessed, and a claim not en- forced ; and while it is conceded that the title to the property cannot be disturbed after the statute has run, it is held that the claim, under new legislation, may still be enforced ; the statute of limitations pertaining to the remedy only, and not barring the right. So it was held in Jones «. Jones, 18 Ala. 248, where the remedy on the claim in dispute had been barred by the statute of another State where the debtor then resided. And see Bentinck v. Franklin, 38 Tex. 458. In Campbell v. Holt, 115 U. S. 620, a similar ruling was made, though against vigorous dissent. It was held that one has no property in the bar of the statute as a de- fence to a promise to pay a debt, and that such bar may be removed by a statute in such case after it has become complete; But this last-mentioned doctrine is re- jected in an opinion of much force by Dixon, Ch. J., in Brown v. Parker, 28 Wis. 21 , 28. To like effect is McCrackert Co. V. Merc. Trust Co., 84 Ky. .344. And see Rockport v. Walden, 54 N. H. 167 ; 8. c. 20 Am. Rep. 131 ; McMerty v. Mor- rison, 62 Mo. 140 ; Goodman v. Miiiiks, 8 Port. (Ala.) 84 ; Harrison v. Stacy, 6 Rob. (La.) 15: Baker h. Stonebraker's Adm'r, 36 Mo. 338 ; Shelby ». Guy, 11 Wheat. 361. The law of the forum governs as to limitations. Barbour v, Krwin, 14 Lea, 716 ; Stirling v. Winter, 80 Mo. 141. See Chevrier v. Robert, 6 Mont. 319; Thompson v. Reed, 76 Me. 404. But the statute of limitations may be suspended for a period as to demands not already barred. Wardlaw r. Buzzard, 15 Rich. 168; Caperton v. Martin, 4 W. Va. 138; 8. 0. 6 Am. Rep. 270 ; Bender v. Craw- CH. XL] PROTECTION BY " THE LAW OF THE LAND." 449 All limitation laws, however, must proceed on the theory that the party, by lapse of time and omissions on his part, has forfeited his right to assert his title in the law.^ Where they relate to property, it seems not to be essential that the adverse claimant should be in actual possession ; ^ but one who is himself in the legal enjoyment of his property cannot have his rights therein forfeited to another, for failure to bring suit against that other within a time specified to test the validity of a claim which the latter asserts, but takes no steps to enforce. It has consequently been held that a statute which, after a lapse of five years, makes a recorded deed purporting to be executed under a statutory power conclusive evidence of a good title, could not be valid as a lim- itation law against the original owner iij possession of the land. Limitation laws cannot compel a resort to legal proceedings by one who is already in the complete enjoyment of all he claims.' All statutes of limitation, also, must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing right of claimants without affording this opportunity : if it should attempt to do so, ford, 33 Tex. 745 ; s. c. 7 Am. Rep. 270 ; Pearsall v. Kenan, 79 N. C. 472; s. c. 28 Am. Rep. 336. A class of cases may be excepted from the operation of the stat- ute, though barred when such except- ing act was passed. Sturm v. Fleming, 8 S. E. Rep. 263 (W. Va.). Tlie legisla- ture may compel a county to pay a claim barred by the general statute. Caldwell Co. V. Harbert, 68 Tex. 321. 1 Stearns v. Gittings, 23 III. 387, per Walker, J.; Sturges v. Crowninshield, 4 Wheat. 122, 207, per Marshall, Ch. J. Pearce v. Fatten, 7 B. Monr. 162 ; Griffin V. McKenzie,7 Ga. 163 ; Colman v. Holmes, 44 Ala. 124. 2 Stearns v. Gittings, 23 111. 387 ; Hill V. Kricke, 11 Wis. 442. » Groesbeck v. Seeley, 13 Mich. 329. In Case v. Dean, 16 Mich. 12, it was held that this statute could not be enforced as a limitation law in favor of the party in possession, inasmuch as it did not pro- ceed on the idea of limiting the time for bringing suit, but by a conclusive rule of evidence sought to pass over the property to the claimant under the statutory sale in all cases, irrespective of possession. See also Baker v. Kelly, 11 Minn. 480 ; Eldridge v. Kuehl, 27 Iowa, 160, 173; Monk V. Corbin, 58 Iowa, 503 ; Farrar v. Clark, 86 Ind. 449; Dingey v. Paxton, 60 Miss. 1038. The case of Leffingwell V. Warren, 2 Black, 599, is contra. That case follows Wisconsin decisions. In the leading case of Hill v. Kricke, 11 Wis. 442, the holder of tlie original title was not in possession ; and what was decided was that it was not necessary for the holder of the tax title to be in possession In order to claim the benefit of the statute ; ejectment against a claimant being per- mitted by law when the lands were un- occupied. See also Barrett v. Holmes,' 102 U. S. 651. To stop the running of the statute it is not necessary that the owner should be in continuous posses- sion. Smith V. Sherry, 54 Wis. 114. This circumstance of possession or want of possession in the person whose right is to be extinguished seems to us of vital importance. How can a man justly be held guilty of laches in not asserting claims to property, when he already pos- sesses and enjoys the property ? The old maxim is, " That which was originally void cannot by mere lapse of time be made valid;" and if a void claim by force of an act of limitation can ripen in-' to a conclusive title as against the owner in possession, the policy underlying that species of legislation must be somethin.g beyond what has been generally sup- posed. 29 450 CONSTITUTIONAL LIMITATIONS. [CH. XI. it would be not a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. It is essential that such statutes allow a reason- able time after they take effect for the commencement of suits upon existing causes of action ; ^ though what shall be considered a reasonable time must be settled by the judgment of the legisla- ture, and the courts will not inquire into the wisdom of its deci- sion in establishing the period of legal bar, unless the time allowed is manifestly so insufficient that the statute becomes a denial of justice.^ Alterations in the Rules of Evidence. It must also be evident that a right to have one^s controversies determined hy existing rules of evidence is not a vested right. These 1 So held of a statute which took ef- fect some months after its passage, and which, in its operation upon certain classes of cases, would have extinguished adverse claims unless asserted by suit "before the act took effect. Price v. Hop- kin, 13 Mich. 318. See also Koshkonong V. Burton, 104 U. S. 668 ; King v. Bel- cher, 30 S. C. 381; People i;. Turner, 22 N. B. Rep. 1022 (N. Y.); Call o. Hagger, 8 Mass. 423 ; Proprietors, &e. V. Laboree, 2 Me. 294; Society, &c. V. Wheeler, 2 Gall. 141; Blackford ti. Peltier, 1 Blackf. 36 ; Thornton b. Turner, 11 Minn. 336; State v. Messenger, 27 Minn. 119; Osborn v. Jaines, 17 Wis. 573 ; Morton u.Sharkey, McCahon (Kan.), 113 ; Berry ». Ransdell, 4 Met. (Ky.) 292 ; Ludwig ti. Stewart, 32 Mich. 27 ; Hart a. Bostwick, 14 Fla. 162. In the case last cited it was held that a statute which only allowed tliirty days in which to bring ac- tion on an existing demand was unrea- sonable and void. And see what is said in Auld V. Butcher, 2 Kan. 135. Compare Davidson v. Lawrence, 49 Ga. 335 ; Kim- bro V. Bank of Fulton, 49 Ga. 419. In Terry v. Anderson, 95 U. S. 628, a stat- ute which as to the demand sued upon limited the time to ten and a half months was held not unreasonable. In Krone v. Krone, 37 Mich. 308, the limitation which was supported was to one year where the general law gave six. In Pereless ». Watertown, 6 Biss. 79, Judge Hopkins, TT. S. District Judge, decided that a limi- tation of one yearfor bringing suits on mu- nicipal securities of a class getierally sold abroad was unreasonable and void. But a statute giving a new remedy against a railroad company for an injury, may limit to a short time, e. g. six months, the time for bringing suit. O'Bannon v. Louis- ville, &c. R. R. Co., 8 Bush, 348. So the remedy by suit against stockholders for corporate debts, it is held, may be lim- ited to one year. Adamson v. Datris, 47 Mo. 268. It is always competent to ex- tend the time for bringing suit before it has expired. Keith v. Keith, 26 Kan. 27. A statute fixing a time for taking out a slierifE's deed after sale applies to a prior sale if a reasonable time is left. Ryhiner V. Frank, 105 111. 326. '^ Stearns v. Gittings, 23 111. 387 ; Call V. Hagger, 8 Mass. 423 ; Smith v. Mor- rison, 22 Pick. 430 ; Price v. Hopkin, 13 Mich. 318 ; De Moss v. Newton, 31 Ind. 219. But see Berry v. Ransdell, 4 Met. (Ky.) 292. It may be remarked here, that statutes of limitation do not apply to the State unless they so provide expressly. Gibson V. Choteau, 13 Wall. 92 ; State v. Piland, 81 Mo. 619 ; State v. School Dist., 34 Kan. 237. And State limitation laws do not apply to the United States. United States V. Hoar, 2 Mas. 311 ; People n. Gilbert, 18 Johns. 227 ; Rabb v. Super- visors, 62 Miss. 589; United States v. Nashville, &c. Ry. Co., 118 U. S. 120. Nor to suits for the infringement of patents. May V. Logan Co, 30 Fed. Rep. 250. And it has been held that the right to main- tain a public nuisance cannot be acquired under the statute. State v. Franklin Falls Co., 49 N. H. 240. CH. XI.] PKOTECTION BY " THE LAW OF THE LAND." 451 rules pertain to the remedies whixsh the State provides for its citi- zens ; and generally in legal contemplation they neither enter into and constitute a part of any contract, nor can be regarded as being of the essence of any right which a party may seek to enforce. Like other rules affecting the remedy, they must therefore at all times be subject to modification and control by the legislature ; ^ and the changes which are enacted may lawfully be made appli- cable to existing causes of action, even in those States in which retrospective laws are forbidden. For the law as changed would only prescribe rules for presenting the evidence in legal contro- versies in the future ; ' and it could not therefore be called retro- spective even though some of the controversies upon which it may act were in progress before. It has accordingly been held in New Hampshire that a statute which removed the disqualifica- tion of interest, and allowed parties in suits to testify, might law- fully apply to existing causes of action.^ So may a statute which modifies the common-law rule excluding parol evidence to vary the terms of a written contract ; ' and a statute making the pro- test of a promissory note evidence of the facts therein stated.* These and the like cases will sufficiently illustrate the general rule, that the whole subject is under the control of the legislature, which prescribes such rules for the trial and determination as well of existing as of future rights and controversies as in its judgment will most completely subserve the ends of justice.^ A strong instance in illustration of legislative control over evi- dence will be found in the laws of some of the States in regard to conveyances of lands upon sales to satisfy delinquent taxes. In- dependent of special statutory rule on the subject, such convey- ances would not be evidence of title. They are executed under a statutory power; and it devolves upon the claimant under them to show that the successive steps which under the statute lead to such conveyance have been taken. But it cannot be doubted that this rule may be so changed as to make a tax-deed prima facie evi- 1 Kendall v. Kingston, 5 Maes. 524; Cowano. McCutchen, 43 Miss. 207 ; Car- Ogden V. Saunders, 12 Wheat. 213, 849; others v. Hurly, 41 Miss. 71. The right per Marshall, Ch. J. ; Fales w.Wadsworth, to testify existing when a contract is made 23 Me. 553 ; Karney v. Paisley, 13 Iowa, may be talsen away. Goodlett v. Kelly, 74 89 ; Commonwealth v. Williams, 6 Gray, Ala. 213. 1; Hickox v. Tallman, 38 Barb. 608; » Gibbs u. Gale, 7 Md. 76. Webb V. Den, 17 How. 576; Pratt v. * Tales r. Wadsworth, 23 Me. 553. Jones, 25 Vt. 303. See ante, p. 849 and « Per Marshall, Ch. J., in Ogden v. note. Saunders,- 12 Wheat. 213, 249 ; Webb v. 2 Rich ». Flanders, 39 N. H. 304. A Den, 17 How. 576 ; Delaplaine v. Cook, 7 very full and satisfactory examination of Wis. 44 ; Kendall v. Kingston, 5 Mass. the whole subject will be found In this 524 ; Towler ». Chatterton, 6 Bing. 268 ; case. To the same efEeet is Southwick Himmelman v. Carpentier, 47 Cal. 42. V. Southwick, 49 N. Y. 610. And Bee 452 CONSTITUTIONAL LIMITATIONS. [CH. XL dence that all the proceedings have been regular, and that the pur- chaser has acquired under them a complete title.^ The burden of proof is thereby changed from one party to the other ; the legal presumption which the statute creates in favor of the purchaser being sufficient, in connection with the deed, to establish his case, unless it is overcome by countervailing testimony. Statutes mak- ing defective records evidence of valid conveyances are of a simi- lar nature ; and these usually, perhaps always, have reference to records before made, and provide for making them competent evi- dence where before they were merely void.^ But they divest no title, and are not even retrospective in character. They merely establish what the legislature regards as a reasonable and just rule for the presentation by the parties of their rights before the courts in the future. But there are fixed bounds to the power of the legislature over this subject which cannot be exceeded. As to what shall be evi- dence, and which party shall assume the burden of proof in civil cases, its authority is practically unrestricted, so long as its regu- lations are impartial and uniform ; but it has no power to estab- lish rules which, under pretence of regulating the presentation of evidence, go so far as altogether to preclude a party from exhibit- ing his rights. Except in those cases which fall within the famil- iar doctrine of estoppel at the common law, or other cases resting upon the like reasons, it would not, we apprehend, be in the power of the legislature to declare that a particular item of evidence should preclude a party from establishing his rights in opposition to it. In judicial investigations the law of the land requires an opportunity for a trial ;^ and there can be no trial if only one party is suffered to produce his proofs. The most formal convey- ance may be a fraud or a forgery ; public officers may connive with rogues to rob the citizen of his property ; witnesses may testify or officers certify falsely, and records may be coUusively manufac- tured for dishonest purposes ; and that legislation which would preclude the fraud or wrong being shown, and deprive the party wronged of all remedy, has no justification in the principles of natural justice or of constitutional law. A statute, therefore, 1 Hand v. Ballou, 12N. T. 541 ; Forbes lished may be abolished, even as to ex- V. Halsey, 26 N. Y. 53 ; Delaplaine w. Cook, ieting deeds. Hickox v. Tallman, 88 Barb. 7 Wis. 44 ; Allen v. Armstrong, 16 Iowa, 608 ; Strode v. Washer, 16 Pac. Rep. 926 508 ; Adams v. Beale, 19 Iowa, 61 ; Am- (Or.K Gage v. Caraher, 125 111. 447. berg V. Rogers, 9 Mich. 332 ; Lnmsden v. ^ See Webb v. Den; 17 How. 576. Cross, 10 Wis. 282 ; Lacey v. Davis, 4 3 Tift ii. Griffin, 5 Ga. 185 ; Lenz v. Midi. 140 I Wright v. Dunham, 13 Mich. Charlton, 23 Wis. 478 ; Conway v. Cable, 414; Abbbftw. iLindenbower,42Mo. 162; 37 111. 82 ; ante, p. 44^ note; post, pp. s. 0. 46 Mo. 291. The rule once estab- 469-471 and notes. CH. XI.] PKOTECTION BY " THK LAW OF THE LAND.' 453 which should make a tax-deed conclusive evidence of a complete title, and preclude the owner of the original title from showing its invalidity, would be void, because being not a law regulating evi- dence, but an unconstitutional confiscation of property.^ And a statute which should make tlie certificate or opinion of an officer conclusive evidence of the illegality of an existing contract would be equally nugatory ; ^ though perhaps if parties should enter into a contract in view of such a statute then existing, its provisions might properly be regarded as assented to and incorporated in their contract, and therefore binding upon them.^ 1 Groesbeck v. Seeley, 13 Mich. 329 ; Case V. Dean, 16 Mich. 12 ; White v. Flyon, 23 Ind. 46 ; Corbin v. Hill, 21 Iowa, 70 ; Abbott v. Llndenbower, 42 Mo. 162 ; B. o. 46 Mo. 291 ; Dingey v. Paxton, 60 Miss. 1038. And see the well-reasoned case of McCready o. Sexton, 29 Iowa, 356 ; Little Rock, &c. K. R. Co. ». Payne, 33 Ark. 816 ; s. c. 34 Am. Rep. 55. Also Wright V. Cradlebaugh, 3 Nev. 341. As to how far the legislature may make the tax- deed conclusive evidence that mere irreg- ularities have not intervened in the pro- ceedings, see Smith v. Cleveland, 17 Wis. 556; Allen v. Armstrong, 16 Iowa, 508. It may be conclusive as to matters liot essential and jurisdictional. Matter of Lake, 40 La. Ann. 142 ; Ensign v. Barse, 107 N. Y. 329. Undoubtedly the legis- lature may dispense with mere matters of form in the proceedings- as well after they have taken place as before ; but this is quite a different thing from mak- ing tax-deeds conclusive on points mate- rial to the interest of the property owner. See further, Wantlan v. White, 19 Ind. 470; People v. Mitchell, 45 Barb. 212; McCready v. Sexton, supra. It is not com- petent for the legislature to compel an owner of land to redeem it from a void tax sale as a condition on which he shall be allowed to assert his title against it. Conway v. Cable, 37 111. 82 ; Hart v. Hen- derson, 17 Mich. 218 ; Wilson v. McKenna, 52 111. 43 ; Reed v. Tyler, 56 111. 288 ; Dean V. Borchsenius, 30 Wis. 236. But it seems that if the tax purchaser has paid taxes and made improvements, the paymem for these may be made a condition precedent to a suit in ejectment against him. Pope V. Macon, 23 Ark. 644. See cases ante, 444, note 1. In Wright v. Cradlebaugh, 3 Nev. 341, 849, Beatty, Ch. J., says: " We apprehend that it is beyond the power of the legislature to restrain a defendant In any suit from setting up a good defence to an action against him^ The legislature could not directly take ■the property of A. to pay the taxes of B. Neither can it indirectly do so by depriv- ing A. of the right of setting up in his answer that his separate property has been jointly assessed with that of B., and asserting his right to pay his own taxes without being incumbered with those of B. . . . Due process of law not only re- quires that a party shall be properly brought into court, but that he shall have the opportunity when in court to estab- lish any fact which, according to the usages of the common law or the provi- sions of the constitution, would be a pro- tection to him or his property." See Tay- lor V. Miles, 5 Kan. ^98 ; s. c. 7 Am. Rep. 558. 2 Young 17. Beardsley, 11 Paige, 93. See also Howard Co. v. State, 22 N. E. Rep. 255 (Ind.). But a provision that six months after the passage of the act cer- tain tax-deeds made on past sales should be conclusive evidence, has been upheld. People V. Turner, 22 N. E. Rep. 1022 (N. Y.). An act to authorize persons whose sheep are killed by dogs, to pre- sent their claim to the selectmen of the town for allowance and payment by the town, and giving the town after payment an action against the owner of the dog for the amount so paid, is void, as taking away trial by jury, and as authorizing the selectmen to pass upon one's rights without giving him an opportunity to be heard. East Kingston v. Towle, 48 N. H. 57 ; 8. c. 2 Am. Rep. 174. * See post, p. 496, note. 454 CONSTITUTIONAL LIMITATIONS. [CH. XI. Metrospective Laws. Eegarding the circumstances under which a man may be said to have a vested right to a defence against a demand made by another, it is somewhat difficult to lay down a comprehensive rule which the authorities will justify. It is certain that he who has satisfied a demand cannot have it revived against him, and he who has become released from a demand by the operation of the statute of limitations is equally protected.^ In both cases the demand is gone, and to restore it would be to create a new con- tract for the parties, — a thing quite beyond the power of legisla- tion.2 So he who was never bound, either legally or equitably, cannot have a demand created against him by mere legislative enactment.^ But there are many cases in which, by existing laws, defences based upon mere informalities are allowed in suits upon contracts, or in respect to legal proceedings, in some of which a regard to substantial justice would warrant the legislature in interfering to take away the defence if it possesses the power to do so. In regard to these cases, we think investigation of the authori- ties will show that a party has no vested right in a defence based upon an informality not affecting his substantial equities. And this brings us to a particular examination of a class of statutes which is constantly coming under the consideration of the courts, and which are known as retrospective laws, by reason of their reaching back to and giving to a previous transaction some differ- ent legal effect from that which it had under the law when it took place. 1 Ante, p. 448, note, and cases cited. its servants. Ohio & M. K. B. Co. v. 2 Albertson v. Landon, 42 Conn. 209. Lackey, 78 111. 55. Absolute liability, ' In Medford o. Learned, 16 Mass. 215, irrespective of negligence, cannot be im- it was held that where a pauper had re- posed on a railroad company for stock kil- ceived support from the parish, to which ling. Cottrel ?;. Union Pac. Ky. Co., 21 by law he was entitled, a subsectuent legis-' Pac. Rep. 416 (Idaho); Bielenberg v. Mon- lative act could not make him liable by tana N. Ey. Co., 20 Pac. Rep. 314 (Mont.), suit to refund the cost of the support. In Atchison, &o. R. R. Co. ». Baty, 6 Neb. This case was approved and followed in 37; s. c. 29 Am. Rep.356,it isheldincom- People V. Supervisors of Columbia, 43 petent to make a railroad company liable N. Y. 180. See ante, p. 444 and note ; to double the value of stock accidentally Towie V. Eastern R. R., 18 N. H. 547. A injured or destroyed on the railroad track, right of action may not be given against But the contrary was held in Missouri a husband to a creditor of the wife upon Pac. Ry. Co. v. Humes, 115 V. S. 612. her contract. Addoms v. Marx, 50 N. J. L. In such cases attornev's fees may be al- 253. A railroad company cannot be made lowed. Peoria, D. & E. Ry. Co. w. Dug- responsible for the coroner's inquest and gan, 109 111. 537. But see Wilder v. Chi- burial of persons dying on the cars, or cago & W. M. Ry. Co., 38 N. W. Rep. killed by collision or other accident occur- 289 (Mich.). See cases on above points, ring to the cars, &c., irrespective of any post, 713, note, 1. wrong or negligence of the company or CH. XI.] PKOTKCTION BY "THE LAW 01' THE LAND." 455 There are numerous cases which hold that retrospective laws are not obnoxious to constitutional objection, while in others they have been held to be void. The different decisions have been based upon diversities in the facts which, make different princi- ples applicable. There is no doubt of the right of the legislature to pass statutes which reach back to and change or modify the effect of prior transactions, provided retrospective laws are not forbidden, eo nomine, by the State constitution, and provided fur- ther that no other objection exists to them than their retrospec- tive character.! Nevertheless, legislation of this character is exceedingly liable to abuse ; and it is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively.^ And some of the States have deemed it just and wise to forbid such laws altogether by their constitutions.^ 1 Thornton v. McGrath, 1 Duvall, 349; Aldridge v. Railroad Co., 2 Stew. & Port. 199; s. c. 23 Am. Dec. 307; State v. Squires, 26 Iowa, 340 ; Beach v. Walker, 6 Conn. 190 ; Schenley v. Commonwealth, 36 Pa. St. 57 ; Shonk v. Brown, 61 Pa. 320; Lane v. Nelson, 79 Pa. St. 407. 2 Dash V. Van Kleeck, 7 Johns. 477; B. c. 5 Am. Dec. 291 ; Sayre v. Wisner, 8 Wend. 661 ; Watkins v. Haight, 18 Johns. 138 ; Bay v. Gage, 36 Barb. 447 ; Norris v. Beyea, 13 N. Y. 273 ; Drake v. Gilmore, 52 N. Y. 389; Quackenbush ». Danks, 1 De- nio, 128 ; Hapgood v. Whitman, 13 Mass. 464 ; Medford v. Learned, 16 Mass. 215.; Gerry v. Stoneham, 1 Allen, 319 ; Kelley V. Boston, &c. R. R. Co., 135 Mass. 448 ; Perkins v. Perkins, 7 Conn. 558 ; s. c. 18 Am. Dec. 120; Plumb v. Sawyer, 21 Conn. 351 ; Hubbard v. Brainerd, 35 Conn. 563 ; Sturgis v. Hull, 48 Vt. 302 ; Briggs V. Hubbard, 19 Vt. 86; Hastings V. Lane, 15 Me. 134; Torrey v. Corliss,. 32 Me. 333 ; Atkinson v. Dunlop, 50 Me. Ill ; Rogers «. Greenbush, 58 Me. 395 ; Guard v. Rowan, 3 III. 499; Garrett v. Doe, 2 III. 335 ; Thompson v. Alexander, 11 m. 54 ; Conway v. Cable, 37 111. 82 ; In re TuUer, 79 HI. 99 ; Knight v. Begole, 66 111. 122; McHaney v. Trustees of Schools, 68 III. 140; Hatcher v. Toledo, &c. R. R. Co., 62 111. 477 ; Harrison v. Metz, 17 Mich. 377; Thomas c. Collins, 68 Mich. 64 ; Danville v. Pace, 25 Gratt. 1 ; Cumberland, &o. R. R. Co. v. Wash- ington Co. Court, 10 Bush, 664 ; State v. Barbee, 3 Ind. 258; State v. Atwood, 11 Wis. 422 ; Bartruff v. Remey, 15 Iowa, 257 ; Knoulton v. Redenbaugh, 40 Iowa, 114; Allbyer v. State, 10 Ohio St. 588; Colony V. Dublin, 32 N. H. 432 ; Ex parte Graham, 13 Rich. 277 ; Garrett v. Beau- mont, 24 Miss. 377 ; Clark v. Baltimore, 29 Md. 277 ; Williams v. Johnson, 30 Md. 500; State t. The Auditor, 41 Mo. 25; State V. Ferguson, 62 Mo. 77 ; Merwin v. Ballard, 66 N. C. 398 ; Tyson v. School Directors, 51 Pa. St. 9; Haley u. Phila- delphia, 68 Pa. St. 45; s. c. 8 Am. Rep. 153; Baldwin v. Newark, 38 N. J. 158; Warshung v. Hunt, 47 N. J. L. 256; McGe'ehan ti. State Treasurer, 37 La. Ann. 156 ; State v. Pinckney, 22 S. C. 484 ; Richmond v. Supervisors, 83 Va. 204. Tills doctrine applies to amendments of statutes. Ely v. Helton, 15 N. Y. 595. If no vested right is disturbed, a retroactive effect may be given a statute, though the language does not render it necessary, provided such is the clear intent. People V. Spicer, 99 N. Y. 225. ' See the provision in the Constitution of New Hampshire, considered in Woart V. Winnick, 3 N. H. 473 ; s. o. 14 Am. Dec. 384 ; Clark v. Clark, 10 N. H. 380 ; Willard v. Harvey, 24 N. H. 344; Rich v. Elanders, 39 N. H. 304 ; and Simpson v. Savings Bank, 56 N. H. 466 ; and that in the Constitution of Texas, in De Cordova V. Galveston, 4 Tex. 470 ; and that in the Constitution of Missouri, in State ti. Her- nan, 70 Mo. 441 ; State v. Greer, 78 Mo. 188. The provision covers only civil, not criminal cases. State v. Johnson, 81 Mo. 456 CONSTITUTIONAL LIMITATIONS. [CH. XL A retrospective statute curing defects in legal proceedings where they are in their nature irregularities only, and do not extend to matters of jurisdiction, is not void on constitutional grounds, unless expressly forbidden. Of this class are the stat- utes to cure irregularities in the assessment of property for taxation and the levy of taxes thereon;^ irregularities in the 60. A statute, passed after a munici- pality has levied a tax, may annul it be- fore it becomes due and put the right to levy it in another body. State v. St. Louis, &c. Ry. Co., 79 Mo. 420. The Constitution of Ohio provides that " the General Assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; provided, however, that the General Assembly may, by general laws, authorize the courts to carry into effect the manifest intention of parties and officers, by cur- ing omissions, defects, and errors in in- struments and proceedings, arising out of their want of conformity with the laws of this State, and upon such terms as shall be just and equitable." Under this clause it was held competent for the General Assembly to pass an act authorizing the courts to correct mistakes in deeds of married women previously executed, whereby they were rendered ineffectual. Goshorn v. Purcell, 11 Ohio St. 641. Under a provision in the Con- stitution of Tennessee that no retrospec- tive law shall be passed, it has been held that a statute passed after a death can- not allow for the first time a recovery for the loss suffered by the children of deceased from the death. Railroad v. Founds, 11 Lea, 127. But a law author- izing a bill to be filed by slaves, by their next friend, to emancipate them, al- though it applied to cases which arose before its passage, was held not a retro- spective law within the meaning of this clause. Fisher's Negroes v. Dobbs, 6 Yerg. 119. So of a law making a judg- ment against the principal conclusive upon the surety. Pickett v. Boyd, 11 Lea, 498. An act for the payment of bounties for past services was held not retrospective, in State v. Richland, 20 Ohio St. 369. See further. Society v. Wheeler, 2 Gall. 106 ; Officer v. Young, 5 Yerg. 320 j s. c. 26 Am. Dec. 268. Under like provision in the Colorada Constitution a statute is void which al- lows a writ of error on a judgment in respect to which an appeal was barred. Wiiloughby ti. George, 5 Col. 80. Legis- lation may be ordered to take immediate effect notwithstanding retrospective laws are forbidden. Thomas v. Scott, 23 La. Ann. 689. That the legislature cannot retrospec- tively construe statutes and bind parties thereby, see ante, p. 110 e< seq. 1 Butler V. Toledo, 5 Ohio St. 225; Strauch -i). Shoemaker, 1 W. & S. 166; McCoy V. Michew, 7 W. & S. 386 ; Mont- gomery V. Meredith, 17 Pa. St. 42 ; Dun- den V. Snodgrass, 18 Fa. St. 151 ; Williston V. Colkett, 9 Pa. St. 38; Boardman v. Beckwith, 18 Iowa, 292 ; The Iowa K. R. Land Co. v. Soper, 39 Iowa, 112; Lennon V. New York, 55 N. Y. 361 ; Smith v. Hard, 59 Vt. 13. Officers may be author- ized to extend inquiries over years pre- ceding ; no new liability is imposed upon the taxpayer. Sturges v. Carter, 114 U. S. 511. It is not unconstitutional to pro- hibit the vacating of assessments for ir- regularities. Astor V. New York, 62 N. Y. 580. The limit of power in validating assessments is very clearly shown by ]\fc- Kimtry, J., in People ii. Lynch, 51 Cal. 15. And see Walter v. Bacon, 8 Mass. 468; Locke w. Dane, 9 Mass 860; Fatter- son t. Philbrook, 9 Mass. 151; Trustees V. McCaughy, 2 Ohio St. 152. Compare Forster v. Forster, 129 Mass. 559. Acts of officers void for jurisdictional defects cannot be validated. Houseman v. Kent Circ. Judge, 58 Mich. 364; Bartlett v. Wilson, 59 Vt. 23. Nor can irregularities be cured after a suit is brought to re- cover money received by a township on a sale of land for an illegal tax. Daniells V. Watertown, 61 Mich. 514. The right to provide for a reassessment of taxes irregularly levied is undoubted. See Brevoort v. Detroit, 24 Mich. 322 ; State V. Newark, 34 N. J. 236 ; Musselman e. Logansport, 29 Ind. 533; Street Railroad Co. V. Morrow, 87 Tenn. 406 ; Redwood Co. u. Winona &c. Co. 40 Minn. 512. But, CH. XI.] PEOTECTION BY " THE LAW OF THE LAND." 457 organization or elections of corporations ; ^ irregularities in the votes or other action by municipal corporations, or the like, where a statutory power has failed of due and regular execution through the carelessness of officers, or other cause ; ^ irregular proceed- ings in courts, &c.^ Thfe rule applicable to cases of this description is substantially the following : If the thing wanting or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law. A few of the decided cases will illustrate this principle. In Kearney v. Taylor* a sale of real estate belonging to infant tenants in common had been made by order of court in a parti- tion suit, and the land bid off by a company of persons, who proposed subdividing and selling it in parcels. The sale was confirmed in their names, but by mixtual arrangement the deed was made to one only, for convenience in selling and conveying. This deed failed to convey the title, because not following the sale. The legislature afterwards passed an act providing that, on proof being made to the satisfaction of the court or jury before which such deed was offered in evidence that the land was sold fairly and without fraud, and the deed executed in good faith and for a sufficient consideration, and with the consent of the persons reported as purchasers, the deed should have the same effect as though it had been made to the purchasers. That this act was unobjectionable in principle was not denied; and it cannot be of course, if the vice is in the nature of the TJ. S. 447. By the Constitution of Mis- tax itself, it will continue and be fatal, souri, the legislature is forbidden to legal- however often the process of assessment ize the unauthorized or invalid acts of may be repeated. See post, p. 470. any officer or agent of the State, or of 1 Syracuse Bank v. Davis, 16 Barb, any county or municipality. Art. 4 § 53. 188; Mitchell v. Deeds, 49 111. 416; Peo- » Lane v. Nelson, 79 Pa. St. 407 ; Til- pie V. Plank Road Co., 86 N. Y. 1. ton v. Swift, 40 Iowa, 78 ; Supervisors v. 2 See Menges v. Wertman, 1 Pa. St. Wisconsin Cent. R. R. Co., 121 Mass. 460 ; 218 ; Yost's Report, 17 Pa. St. 624 ; Cookerly v. Duncan, 87 Ind. 832 ; Muncie Bennett v. Fisher, 26 Iowa, 497 ; Allen Nat. Bank v. Miller, 91 Ind. 441 ; Jolinson V. Archer, 49 Me. 846 ; Commonwealth v. Com'rs Wells Co., 107 Ind. 15. See V. Marshall, 69 Pa. St. 328 ; State o. cases post, 471, note 2. Union, 33 N. J. 850 ; State v. Gnttenberg, * 15 How. 494. And see Boyce v. Sin- 38 N.J. 419; Mut. Ben. Life Ins. Co. ». clair, 3 Bush, 261; Weed ». Donovan, Elizabeth, 42 N.J. 235; Rogers .<. Ste- 114 Mass. 181. phens, 86 N. Y. 623 ; Unity v. Burrage, 103 458 CONSTITUTIONAL LIMITATIONS. [CH. XL doubted that a prior statute, authorizing the deed to be made to one for the benefit of all and with their assent, would have been open to no valid objection.^ lu certain Connecticut cases it was insisted that sales made of real estate on execution were void, because the officer had in- cluded in the amount due, several small items of fees not allowed by law. It appeared, however, that, after the sales were made, the legislature had passed an act providing that no levy should be deemed void by reason of the officer having included greater fees than were by law allowable, but that all such levies, not in other respects defective, should be valid and effectual to transmit the title of the real estate levied upon. The liability of the officer for receiving more than his legal fees was at the same time left unaffected. In the leading case the court say : " The law, un- doubtedly, is retrospective ; but is it unjust ? All the charges of the officer on the execution in question are perfectly reasonable, and for necessary services in the performance of his duty ; of consequence they are eminently just, and so is the act confirming the levies. A law, although it be retrospective, if conformable to entire justice, this court has repeatedly decided is to be recog- nized and enforced." ^ In another Connecticut case it appeared that certain marriages had been celebrated by persons in the ministry who were not empowered by the State law to perform that ceremony, and that the marriages were, therefore invalid. The legislature had after- wards passed an act declaring all such marriages valid, and the court sustained the act. It was assailed as an exercise of the judicial power ; but this it clearly was not, as it purported to settle no controversies, and merely sought to give effect to the desire of the parties, which they had ineffectually attempted to carry out by means of the ceremony which proved insufficient. And while it was not claimed that the act was void in so far as it made effectual the legal relation of matrimony between the parties, it was nevertheless insisted that rights of property depend- ent upon that relation could not be affected by it, inasmuch as, in order to give such rights, it must operate retrospectively. The 1 See Davis v. State Bank, 7 Ind. 316 ; v. Chapman, 6 Conn. 54; l^'orton u Pet- and Lucas v. Tucker, 17 Ind. 41, for de- tibone, 7 Conn. .319 ; Welch v. Wads- cisions under statutes curing irregular worth, 30 Conn. 149; Smith ». Mer- sales by guardians and executors. In chand's Ex'rs, 7 S. & R. 260 ; Underwood many of the States general laws will be v. Lilly, 10 S. & R. 97 ; Bleakney v. Bank found providing that such sales shall not of Greencastle, 17 S. & R. 64 ; Menpes v, be defeated by certain specified defects Wertman, 1 Pa. St. 218 ; Weister v. Hade, and irregularities. 52 Pa. St. 474 ; Ahl u. Gleim, 52 Pa. St. 2 Beach v. Walker, 6 Conn. 190, 197. 432 ; Selsby v. Redlon, 19 Wis. 17 ; Par- See Booth V. Booth, 7 Conn. 350 ; Mather melee v. Lawrence, 48 111. 331. CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 459 court in disposing of the case are understood to express the opinion that, if the legislature possesses the power to validate an imperfect marriage, still more clearly does it have powe^r to affect incidental rights. " The man and the woman were unmarried, notwithstanding the formal ceremony which passed between them, and free in point of law to live in celibacy, or contract marriage with any other persons at pleasure. It is a strong exercise of power to compel two persons to marry without their consent, and a palpable perversion of strict legal right. At the same time the retrospective law thus far directly operating on vested rights is admitted to be unquestionably valid, because it is manifestly just." 1 It is not to be inferred from this language that the court un- derstood the legislature to possess power to select individual members of the community, and force them into a relation of marriage with each other against their will. That complete con- trol which the legislature is supposed to possess over the domestic relations can hardly extend so far. The legislature may perhaps divorce parties, with or without cause, according to its own view of justice or public policy ; but for the legislature to marry parties against their consent, we conceive to be decidedly against " the law of the land." The learned court must be understood as speaking here with exclusive reference to the case at bar, in which the legislature, by the retrospective act, were merely re- moving a formal defect in certain marriages which the parties had assented to, and which they had attempted to form. Such an act, unless special circumstances conspired to make it other- wise, would certainly be " manifestly just," and therefore might well be held " unquestionably valid." And if the marriage was rendered valid, the legal incidents would follow of course. In a Pennsylvania case the validity of certain grading and paving as- sessments was involved, and it was argued that they were invalid for the reason that the city ordinance under which they had been made was inoperative, because not recorded as required by law. But the legislature had passed an act to validate this ordinance, and had declared therein that the omission to record the ordi- 1 Goshen v. Stonington, 4 Conn. 209, Baity v. Granfil, 91 N. C. 293. That the 221, per Bosmer, J. ; s. c. 10 Am. Dec. legislature may legitimize children, see 121. And see State v. Adams, 65 N. C. Andrews v. Page, 3 Heisls. 653. The 6."7, where it was held that the act vali- power to validate void marriages held dating the previous marriages of slaves not to exist in the legislature where, by was effectual, and a subsequent marriage the constitution, the whole subject was in disregard of it would be bigamy. The referred to the courts. White v. White, legislature may remove after a marriage 105 Mass. 325. a disability created by its former action. 460 CONSTITUTIONAL LIMITATIONS. [CH. Xl; nance should not affect or impair the lien of the assessments against the lot owners. In passing upon the validity of this act, the court express the following views : " Whenever there is a right, though imperfect, the constitution does not prohibit the legislature from giving a remedy. In Hepburn v. Curts,^ it was said, ' Tlie legislature, provided it docs not violate the constitu- tional provisions, may pass retrospective laws, such as in their operation may affect suits pending, and give to a party a remedy which he did not previously possess, or modify an existing remedy, or remove an impediment in the way of legal proceedings.' What more has been done in this case? . . . While (the ordinance) was in force, contracts to do the work were made in pursuance of it, and the liability of the city was incurred. But it was suffered to become of no effect by the failure to record it. Notwithstand- ing this, the grading and paving wece done, and the lots of the defendants received the benefit at the public expense. Now can the omission to I'ecord the ordinance diminish the equitable right of the public to reimbursement ? It is at most but a formal de- fect in the remedy provided, — an oversight. That such defects may be cured by retroactive legislation need not be argued." ^ On the same principle' legislative acts validating invalid con- tracts have been sustained. When these acts go no farther than to bind a party by a contract which he has attempted to enter into, but which was invalid by reason of some personal inability on his part to make it, or through neglect of some legal formality, or in consequence of some ingredient in the contract forbidden by law, the question which they suggest is one of policy, and not of constitutional power. By statute of Ohio, all bonds, notes, bills, or contracts negoti- able or payable at any unauthorized bank, or made for the pur- pose of being discounted at any such bank, were declared to be void. While this statute was in force a note was made for the purpose of being discounted at one of these institutions, and was actually discounted by it. Afterwards the legislature passed an act, reciting that many persons were indebted to such bank, by bonds, bills, notes,. &c., and that owing, attiong other things, to doubts of its right to recover its debts, it was unable to meet its own obligations, and had ceased business, and for the purpose of winding up its affairs had made an assignment to a trustee ; 1 7 Watts, 800. St. 433 ; State ». Union, 33 N. J. 350. ^ Schenley v. Commonwealth, 36 Fa. The legislature has the same power to St. 29, 57. See also State v. Newark, 27 ratify and confirm an illegally appointed K. J. 185; Den v. Downam, 18 N. J. 135; corporate body that it has to create a People V. Seymour, 16 Cal. 332 ; Grim v. new one. Mitchell u. Deeds, 49 111. 416. Weissenburg School District, 67 Pa. CH. XI.] PEOTECTION BY " THE LAW OF THE LAND." 461 therefore the said act authorized the said trustee to bring suits on the said bonds, bills, notes, &c., and declared it should not be lawful for the defendants in such suits " to plead, set up, or insist upon, in defence, that the notes, bonds, bills, or other written evidences of such indebtedness are void on account of being con- tracts against or in violation of any statute law of this State, or on account of their being contrary to public policy." This law was sustained as a law " that contracts may be enforced," and as in furtherance of equity and good morals.^ The original invalid- ity was only because of the statute, and that statute was founded upon reasons of public policy which had either ceased to be of force, or which the legislature regarded as overborne by counter- vailing reasons. Under these circumstances it was reasonable and just that the makers of such paper should be precluded from relying upon such invalidity .^ By a statute of Connecticut, where loans of money were made, and a bonus was paid by the borrower over and beyond the inter- est and bonus permitted by law, the demand was subject to a de- duction from the principal of all the interest and bonus paid. A construction appears to have been put upon this statute by busi- ness men which was different from that afterwards given by the 1 Lewis V. McElvain, 16 Ohio, 347. But where an act is forbidden by statute under penalty, and therefore illegal, the mere repeal of the statute will not legal- ize it. Roby V. West, 4 N. H. 285 ; s. c. 17 Am. Dec. 423. 2 Trustees v. McCaughy, 2 Ohio St. 152; Johnson v. Bentley, 16 Ohio, 97. See also Syracuse Bank v. Davis, 16 Barb. 188. By statute, notes issued by unincorporated banking associations were declared void. This statute was after- wards repealed, and action was brought against bankers on notes previously is- sued. Objection being taken that the legislature could not validate the void contracts, the judge says : "I will con- sider this case on the broad ground of the contract having been ^ void when made, and of no new contract having arisen since the repealing act. Bat by rendering the contract void it was not an- nihilated. Tlie object of the [original] act was not to vest any right in any un- lawful banking association, but directly the reverse. The motive was not to create a privilege, or shield them from the payment of their just debts, but to restrain them from violating the law by destroying the credit of their paper, and punishing those wlio received it. How then can the defendants complain ? As unauthorized bankers they were violators of the law, and objects not of protection but of punishment. The repealing act was a statutory pardon of the crime com- mitted by the receivers of this illegal me- dium. Might not the legislature pardon the crime, without consulting those who committed it ? . . . How can the defend- ants say there was no contract, when the plaintiff produces their written engage- ment for the performance of a duty, binding in conscience if not in law? Al- though the contract, for reasons of policy, was so far void that an action could not be sustained on it, yet a moral obligation to perform it, whenever those reasons ceased, remained ; and it would be going very far to say that the legislature may not add a legal sanction to that obliga- tion, on account of some fancied consti- tutional restriction." Hess v. Werts, 4 S. & B. 356, 361. See also Bleakney v. Bank of Greencastle, 17 S. & B. 64; Henges v. Wertman, 1 Fa. St. 218 ; Boyce V. Sinclair, 3 Bush, 264. 462 CONSTITUTIONAL LIMITATIONS. [CH. XI. courts ; and a large number of contracts of loan were in conse- quence subject to the deduction. The legislature then passed a " healing act," which provided that such loans theretofore made should not be held, by reason of the taking of such bonus, to be usurious, illegal, or in any respect void ; but that, if otherwise legal, they were thereby confirmed, and declared to be valid, as to principal, interestj and bonus. The case of Goshen v. Stoning!- ton 1 was regarded as sufficient authority in support of this act; and the principle to be derived from that case was stated to be " that where a statute is expressly retroactive, and the object and effect of it is to correct an innocent mistake, remedy a mischief, execute the intention of the parties, and promote justice, then, both as a matter of right and of public policy affecting the peace and welfare of the community, the law should be sustained." ^ After the courts of the State of Pennsylvania had decided that the relation of landlord and tenant could not exist in that State under a Connecticut title, a statute was passed which provided that the relation of landlord and tenant "shall exist and be held as fully and effectually between Connecticut settlers and Penn- sylvania claimants as between other citizens of this Common- wealth, on the trial of *any case now pending or hereafter to be brought within this Commonwealth, any law or usage to the con- trary notwithstanding." In a suit which was pending and had been once tried before the statute was passed, the statute was sustained by the Supreme Court of that State, and afterwards by the Supreme Court of the United States, into which last-men- tioned court it had been removed on the allegation that it vio- lated the obligation of contracts. As its purpose and effect was to remove from contracts which the parties had made a legal im- pediment to their enforcement, there would seem to be no doubt, in the light of the other authorities we have referred to, that the conclusion reached was the only just and proper one.^ 1 4 Conn. 209, 224; s. o. 10 Am. Dec. Ch. 66; Welch v. Wadsworth, 30 Conn. 121. See The Eentncky statute referred to vate people, and to restrain their expense, was declared unconstitutional in Gaines ». either by sumptuary laws, or by prohibit- Bnford, 1 Dana, 484. See also Violett v. ing the importation of foreign luxuries." Violett, 2 Dana, 326. Wealth of Nations, B. 2, o. 3. As to 476 CONSTITUTIONAL LIMITATIONS. [OH. XL to be made, but afterwards has recovered the land and appropri- ated the improvements, it would seem that there must exist against him at least a strong equitable claim for reimbursement of the expenditures, and perhaps no sufficient reason why pro- vision should not be made by law for their recovery. Accordingly in the several States statutes will be found which undertake to provide for these equitable claims. These statutes are commonly known as betterment laws ; and as an illustration of the whole class, we give the substance of that adopted in Ver- mont. It provided that after recovery in ejectment, where he or those through whom he claimed had purchased or taken a lease of the land, supposing at the time that the title purchased was good, or the lease valid to convey and secure the title and interest therein expressed, the defendant should be entitled to recover of the plaintiff the full value of the improvements made by him or by those through whom he claimed, to be assessed by jury, and to be enforced against the land, and not otherwise. The value was ascertained by estimating the increased value of the land in con- sequence of the improvements ; but the plaintiff at his election might have the value of the land without the improvements as- sessed, and the defendant should purchase the same at that price within four years, or lose the benefit of his claim for improve- ments. But the benefit of the law was not given to one who had entered on land by virtue of a contract with the owner, unless it should appear that the owner had failed to fulfil such contract on his part.^ This statute, and similar ones which preceded it, have beeft adjudged constitutional by the Supreme Court of Vermont, and have frequently been enforced. In an early case the court ex- plained the principle of these statutes as follows: "The action for betterments, as they are termed in the statute, is given on the supposition that the legal title is found to be in the plaintiff in ejectment, and is intended to secure to the defendant the fruit of his labor, and to the plaintiff all that he is justly entitled to, ■which is his land in as good a situation as it would have been if no labor had been bestowed thereon. The statute is highly equit- able in all its provisions, and would do exact justice if the value either of the improvements or of the land was always correctly estimated. The principles upon which it is founded are taken from the civil law, where ample provision was made for reimburs- ing to the bona fide possessor the expense of his improvements, if he was removed from his possession by the legal owner. It gives 1 Revised Statutes of Vermont of 1839, p, 216. CH. XI.] PEOTECTION BY " THE LAW OF THE LAND." 477 to the, possessor not the expense which he has laid out on the land, but the amount which he has increased the value of the land by his betterments thereon ; or, in other words, the difference between the value of the land as it is when the owner recovers it, and the value if no improvement had been made. If the owner takes the land together with the improvements, at the advanced value which it has from the labor of the possessor, what can be more just than that he should pay the difference ? But if he is unwilling to pay this difference, by giving a deed as the statute provides, he receives the value as it would have been if nothing had been done, thereon. The only objection which can be made is, that it is sometimes compelling the owner to sell when he may have been content with the property in its natural state. But thi^, when weighed against the loss to the hona fide possessor, and against the injustice of depriving him of the fruits of his labor, and giving it to another, who, by his negligence in not sooner enforcing his claim, has in some measure contributed to the mis- take under which he has labored, is not entitled to very great consideration." ^ The last circumstance stated in this opinion — the negligence of the owner in asserting his claim — is evidently deemed impor- tant in some States, whose statutes only allow a recovery for improvements by one who has been in possession a certain num- ber of years. But a later Vermont case dismisses it from con- sideration as not being a necessary ground on which to base the right of recovery. " The right of the occupant to recover the value of his improvements," say the court, " does not depend upon the question whether the real owner has been vigilant or negligent in the assertion of his rights. It stands upon a princi- ple of natural justice and equity ; viz., that the occupant in good faith, believing himself to be the owner, has added to the perma- nent value of the land by his labor and his money ; is in equity entitled to such added value ; and that it would be unjust that the owner of the land should be enriched by acquiring the value of such improvements without compensation to him who made them. This principle of natural justice has been very widely — we may say universally — recognized." ^ 1 Brown v. Storm, 4 Vt. 37. This class 306. For other cases in which similar of legislation was also elaborately exam- laws have been held constitutional, see ined and defended by Trumbull, J., in Armstrong v. Jackson, 1 Blackf. 374 ; Ross V. Irving, 14 111. 171, and in some of Fowler ». Halbert, 4 Bibb, 64 ; Withing- the other cases referred to in the succeed- ton v. Corey, 2 N. H. 1 15 ; Bacon r. Callen- ing note. See also Bright v. Boyd, 1 der, 6 Mass. 303 ; Facquette v. Fickness, Story, 478 ; s. c. 2 Story, 605. 19 Wis. 219 ; Childs v. Shower, 18 Iowa, 2 Whitney v. Eiohardson, 31 Vt. 300, 261 ; Scott v. Mather, 14 Tex. 235 j Saun- 478 CONSTITUTIONAL LIMITATIONS. [CH. XI. Betterment laws, then, recognize the existence of an equitable right, and give a remedy for its enforcement where none had ex- isted before. It is true that they make a man pay for improve- ments which he has not directed to be made ; but this legislation presents no feature of officious interference by the government with private property. The improvements have been made by one person in good faith, and are now to be appropriated by an- other. The parties cannot be placed in statu quo, and the statute accomplishes justice as nearly as the circumstances of the case will admit, when it compels the owner of the land, who, if he declines to sell, must necessarily appropriate the betterments made by another, to pay the value to the person at whose expense they have been made. The case is peculiar ; but a statute can- not be void as an unconstitutional interference with private prop- erty which adjusts the equities of the parties as nearly as possible according to natural justice.^ ders V. Wilson, 19 Tex. 194; Braokett V. Norcross, 1 Me. 89 ; Hunt's Lessee v. MuMalian, 6 Ohio, 182 ; Longworth v. Wortliington, 6 Oliio, 9 ; Stump v. Horn- bacl£, 94 Mo. 2S. See further, Jones v. Carter, 12 Mass. 314 ; Coney v. Owen, 6 Watts, 435 ; Steele «. Spruance, 22 Pa. St. 256 i Lynch v. Brudie, 63 Pa. St. 206; Dothage v. Stuart, 35 Mo. 251 ; Fenwick V. Gill, 38 Mo. 510 ; Howard v. Zeyer, 18 La. Ann. 407 ; Pope v. Macon, 23 Ark. 644; Marlow v. Adams, 24 Ark. 109 ; Or- mond V, Martin, 37 Ala. 598; Love v. Shartzer, 31 Cal. 487 ; Griswold v. Bragg, 48 Conn. 677; s. o. 18 Blatch. 202; Kidd V. Guild, 48 Mich. 307. For a contrary ruling, see Nelson «. Allen, 1 Yerg. 360, in which, however, Judge Catron in a note says the question was really not in- volved. Mr. Justice Story held, in So- ciety, &c. V. Wheeler, 2 Gall. 105, that such a law could not constitutionally be made to apply to improvements made before its passage ; but this decision was made under the New Hampshire Consti- tution, which forbade retrospective laws. The principles of equity upon which such legislation is sustained would seem not to depend upon the time when the improve- ments were made. See Davis's Lessee V. Powell, 13 Ohio, 308. In Childs v. Shower, 18 Iowa, 261, it was held that the legislature could not constitutionally make the value of the improvements a personal charge against the owner of the land, and authorized a personal judgment against him. The same ruling was had in McCoy v. Grandy, 3 Ohio St. 463. A statute had been passed authorizing the occupying claimant at his option, after judgment rendered against him for the recovery of the land, to demand pay- ment from the successful claimant of the full value of his lasting and valuable im- provements, or to pay to the successful claimant the value of the land without the improvements, and retain it. The court say : " The occupying claimant act, in securing to the occupant a compensa- ' tion for his improvements as , a condition precedent to the restitution of the lands to the owner, goes to the utmost stretch of the legislative power touching this sub- ject. And the statute . . . providing for the transfer of the fee in the land to the occupying claimant, without the consent of the owner, is a palpable invasion of the right of private property, and clearly in conflict with the Constitution." 1 In Harris v. Inhabitants of Marble- head, 10 Gray, 40, it was held that the betterment law did not apply to a town which had appropriated private property for the purposes of a school-house, and erected the house thereon. The law, it was said, did not apply " where a party is taking land by force of the statute, and is bound to see that all the steps are reg- ular. If it did, the party taking the land might in fact compel a sale of the laud, or compel the party to buy the school- house, or any other building erected CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 479 Unequal and Partial Legislation. In the course of our discussion of this subject, it has been seen that some statutes are void though general in their scope, while others are valid though establishing rules for single cases only. An enactment may therefore be the law of the land without being a general law. And this being so, it may be important to con- sider in what cases constitutional principles will require a statute to be general in its operation, and in what cases, on the other baud, it may be valid without being general. We speak now in reference to general constitutional principles, and not to any peculiar rules which may have become established by special provisions in the constitutions of individual States. The cases relating to municipal corporations stand upon pecu- liar grounds from the fact that those corporations are agencies of government, and as such are subject to complete legislative control. Statutes authorizing the sale of property of minors and other persons under disability are also exceptional, in that they are applied for by the parties representing the interests of the owners, and are remedial in their character. Such statutes are supported by the presumption that the parties in interest would consent if capable of doing so ; and in law they are to be con- sidered as assenting in the person of the guardians or trustees of their rights. And perhaps in any other case, if a party petitions for legislation and avails himself of it, he may justly be held estopped from disputing its validity ; ^ so that the great bulk of private legislation which is adopted from year to year may at once be dismissed from this discussion. Laws public in their objects may, unless express constitutional provision forbids,^ be either general or local in their application ; upon it." But as a matter of constitu- it would be void if not assented to. Beall tional authority, we see no reason to v. Beall, 8 Ga. 210. doubt that the legislature might extend ^ Seean^e, pp. 149-1 51, notes, and cases such a law even to the cases of this de- cited. To make a statute a public law of scription. general obligation, it is not necessary that 1 This doctrine was applied in Fer- it should be equally applicable to all guson V. Landram, 5 Bush, 230, to parties parts of the State. All that is required who had obtained a statute for the levy is that it shall apply equally to all per- of a tax to refund bounty moneys, which sons within the territorial limits described statute was held void as to other per- in the act. State v. County Commission- sons. And see Motz v. Detroit, 18 Mich, ers of Baltimore, 29 Md. 516. See Pol- 495 ; Dewhurst v. Allegheny, 95 Pa. St. lock v. McClurken, 42 III. 370 ; Haskel v. 437 ; Andrus v. Board of Police, 6 Sou. Burlington, 30 Iowa, 232; Unity v. Bur- Rep. 603 (La.). A man may be bound rage, 103 U. S. 447. Liquor sates may by his assent to an act changing the rules be forbidden in the country and permit- of descent in his particular case, though ted in the towns. State v. Berlin, 21 480 CONSTITUTIONAL LIMITATIONS. [OH. XL they may embrace many subjects or one, and they may extend to all citizens, or be confined to particular classes, as minors or married women, bankers or traders, and the like.^ The authority that legislates for the State at large must determine whether particular rules shall extend to the whole State and all its citi- zens, or, on the other hand, to a subdivision of the State or a single class of its citizens only. The circumstances of a par- ticular locality, or the prevailing public sentiment in that section of the State, may require or make acceptable different police regulations from those demanded in another, or call for different taxation, and a different application of the public moneys. The legislature may therefore prescribe or authorize different laws of police, allow the right of eminent domain to be exercised in different cases and through different agencies, and prescribe pe- culiar restrictions upon taxation in each distinct municipality, provided the State constitution does not forbid.'^ These discrim- inations are made constantly ; and the fact that the laws are of local or special operation only is not supposed to render them obnoxious in principle. The legislature may also deem it desir- able to prescribe peculiar rules for the several occupations, and to establish distinctions in the rights, obligations, duties, and capaci- ties of citizens.^ The business of common carriers, for instance, S. C. 292 ; Howell o. State, 71 Ga. 324. ics and other laborers. Davis v. State, 3 See Marmet v. State, 45 Ohio St. 63. Com- Lea, 376. But under it peculiar provi- pare Hatcher v. State, 12 Lea, 868. An sions as to liens carniot be made appli- act may be made a misdemeanor in cer- cable to but two counties. Woodard v, tain counties only. Davis v. State, 68 Brien, 14 Lea, 520. A statute exempting Ala. 58 ; State v. Moore, 10 S. E. Rep. from taxation property to the amount of 143 (N. C). But a law is void which $500 of widows and maids held uncon- makes pool selling innocent under certain stitutional because unequal. State v. circumstances, while it is generally an of- Indianapolis, 69 Ind. 375; s. c. 35 Am. fence. Daly v. State, 13 Lea, 228. Rep. 223 ; Warner v. Curran, 75 Ind. 1 See the Iowa B. R. Land Co. v. 309. Soper, 39 Iowa, 112; Matter of Goodell, It is not competent to except from 39 Wis. 232 ; s. c. 20 Am. Rep. 42 ; Com- right to recover for injury from defec- monwealth v. Hamilton Mfg. Co., 120 tive sidewalk all who do not reside in Mass. 383. States where similar injuries constitute 2 The constitutional requirement of right of action. Pearson v. Portland, 69 equal protection of the laws does not Me. 278 ; s. o. 31 Am, Rep. 276. The make necessary the same local regula- rule of non-liability of the master to a tions, municipal powers, or judicial or- servant for injury suffered through a fel- ganization or jurisdiction. Missouri v. low-servant's negligence may be abro- Lewis, 101 U. S. 22. See Strauder v. W. gated as to railroad companies. Missouri Virginia, 100 U.S. 308; Virginia v. Pac. Ry. Co. u. Mackey, 33 Kan. 298. A Rives, 100 U. S. 313 ; Ex parte Virginia, police regulation, affecting all railroads, 100 U. S. 339. to enforce a quicker delivery of freight is ' The prohibition of special legisla- valid. Little Rock, &c. Ry. Co. v. Han- tion for the benefit of individuals does niford, 49 Ark. 291. So one forbidding not preclude laws for the benefit of par- burying an animal killed by a train, ticular classes.; as, for example, mechan- Bannon v. State, 49 Ark. 167. An at- CH. XI.] PEOTECTION BY " THE LAW OF THE LAND." 481 or of bankers, may require special statutory regulations for the general benefit, and it may be matter of public policy to give laborers in one business a specific lien for their wages, when it would be impracticable or impolitic to do the same for persons engaged in some other employments. If the laws be otherwise unobjectionable, all that can be required in these cases is, that they be general in their application to the class or locality to which they apply ; and they are then public in character, and of their propriety and policy the legislature must judge. But a statute would not be constitutional which should pro- scribe a class or a party for opinion's sake,^ or which should. torney fee, as a penalty, may be allowed for non-compliance with fencing law if animal is so Icilled. Peoria, D. & £. Ky. Co. V. Duggan, 109 111. 537. Contra, Wilder v. Chicago, &c. Ry. Co., 38 N. W. Kep. 289 (Midi.) ; South, &c. R. R. Co. v. Morris, 65 Ala. 198 ; as class legislation. 1 The sixth section of the Metropoli- tan Police Law, of Baltimore (1859) pro- vided that " no Black Republican, or in- dorser or supporter of the Helper book, shall be appointed to any oflSce " under the Board of Police which it established. This was claimed to be unconstitutional, as introducing into legislation the princi- ple of proscription for the sake of politi- cal opinion, which was directly opposed to the cardinal principles on which the Constitution was founded. The court dismissed the objection in the following words : " That portion of the sixth sec- tion which relates to Black Republicans, &c., is obnoxious to the objection urged against it, if we are to consider th^t class of persons as proscribed on account of their political or religious opinions, But we cannot understand, officially, who are meant to be affected by the proviso, and therefore cannot express a judicial opin- ion on the question." Baltimore v. State, 15 Md. 376, 468. See also p. 484. This does not seem to be a very satisfactory disposition of so grave a constitution- al objection to a legislative act. That courts may take judicial notice of the fact that the electors of the country are di- vided into parties with well-known desig- nations cannot be doubted ; and when one of these is proscribed by a name familiarly applied to it by its opponents, the inference that it is done because of political opinion seems to be too conclu- sive to need further support than that which is found m the act itself. And we know no reason why courts should de- cline to take notice of these facts of gen- eral notoriety, which, like the^ names of political parties, are a part of the public history of the times. A statute requiring causes in which the venue has been changed to be remanded on the affida- vits of three unconditional Union men, that justice can be had in the courts where it originated, held void, on the principles stated in the text, in Brown v- Haywood, 4 Heisk. 357, It has been decided that State laws forbidding the intermarriage of whites and blacks are such police regulations as are entirely within the power of the States, notwithstanding the provisions of the new amendments to the federal Constitu- tion. State V. Jackson, 80 Mo. 175 ; State V Gibson, 36 Ind. 389 ; s. c. 10 Am. Rep. 42 ; State v. Hairston, 63 N. C. 451 ; State V. Kenney, 76 N. C. 251 ; s. c. 22 Am. Rep. 683; Ellis v. State, 42 Ala. 525; Green v. State, 58 Ala. 190 ; s. o. 29 Am. Rep. 739 ; Kinney's Case, 30 Gratt. 858 ; Frasher v. State, 3 Tex. App. 263 ; s. c. 30 Am. Rep. 131 ; Lonas v. State, 3 Heisk. 287; 8. c. 1 Green, Cr. R. 452; Ex rel. Hobbs & Johnson, 1 Woods, 537 ; Ex parte Kinney, 3 Hughes, 9 ; Ex parte Francois, 8 Woods, 367. It is also said colored chil- dren may be required to attend separate schools, if impartial provision is made for their instruction. State v. Duffy, 7 Nev. 342 ; s. c. 8 Am. Rep. 713 ; Cory v. Car- ter, 48 Ind. 327 ; Ward v. Flood, 48 Cal. 36; State I'. McCann, 21 Ohio St. 198; People V. Gallagher, 93 N. T. 438; Ber- tonneau t'. School Directors, 3 Woods, 177. But some States forbid this. People 31 482 CONSTITUTIONAL LIMITATIONS. [CH. XL select particular individuals from a class or locality, and subject them to peculiar rules, or impose upon them special obligations or burdens from which others in the same locality or class are exempt.^ The legislature may suspend the operation of the general laws of the State ; but when it does so the suspension must be general, and cannot be made for individual cases or for particular locali- ties.^ Privileges may be granted to particular individuals when by so doing the rights of others are not interfered with ; disabili- ties may be removed ; the legislature as •parens patriae, when not forbidden, may grant authority to the guardians or trustees of price or private judgment of the board which approves the sellers' bond. Peo- ple V. Haug, 37 N. W. Rep. 21 (Mich.). Keeping open after legal hours cannot be declared a breach of the peace for which an arrest may be made without a warrant. Id, There is no reason, however, why the law should not take notice of peculiar views held by some classes of people, which unfit them for certain pub- lic duties, and excuse them from the performance of such duties ; as Quakers are excused from military duty, and per- sons denying the right to inflict capital punishment are excluded from juries in capital cases. These, however, are in the nature of exemptions, and they rest upon considerations of obvious necessity. ^ The statute of limitations cannot be suspended in particular cases while al- lowed to remain in force generally. Hol- den V. James, 11 Mass. 896 ; Davison v. Johonnot, 7 Met. S88. See ante, p. 448, note. The general exemption laws can- not be yaried for particular cases or lo- calities. Bull V. Conroe, 13 Wis. 233, 244. The legislature, when forbidden to grant divorces, cannot pass special acts author- izing the courts to grant divorces in par- ticular cases for causes not recognized in the general law. Teft v. Teft, 3 Mich. 67 ; Simonds v. Simonds, 103 Mass. 572. See, for the same principle, Alter's Appeal, 67 Pa. St. 341. The authority in emergen- cies to suspend the civil laws in a part of the State only, by a declaration of mar- tial law, we do nut call in question by anything here stated. Nor in what we have here said do we have any reference to suspensions of the laws generally, or of any particular law, under the extra- ordinary circumstances of rebellion or war. V. Board of Education, 18 Mich. 40O; Clark V. Board of Directors, 24 Iowa, 266; Dove v. School District, 41 Iowa, 689 ; Chase v. Stephenson, 71 111. 383 ; People V. Board of Education of Quincy, 101 111. 308; Board of Education v. Tin- non, 26 Kan. 1 ; Pierce v. Union Dist., 46 N. J. L.76 ; Kaine v. Com., 101 Pa. St. 490. See Dawson v. Lee, 83 Ky. 49. And when separate schools are not established for colored children, they are entitled to admission to the other public schools. State V. DuSy, supra. Where separate schools are allowed, property of whites cannot be taxed for white schools alonej and of negroes for negro schools. Fuitt v. Com'rs, 94 N. C. 709; Clay brook v. Owens- boro, 16 Fed. Eep. 297. 1 Lin Sing v. Washburn, 20 Cal. 534; Brown v. Haywood, 4 Heisk. 357. A San Francisco ordinance required every male person imprisoned in the county jail to have his hair cut to an uniform length of one inch. This was held invalid, as be- ing directed specially against the Chinese. Ah Kow V. Nunan, 5 Sawyer, 552. See Tick Wo V. Hopkins, 118 U. S. 356. In Louisiana an ordinance forbidding the sale of goods on Sunday, but excepting from its operation those keeping their places of business closed on Saturday, was held partial and therefore unconstitu- tional. Shreveport v. Levy, 26 La. Ann. 671 ; s. c. 21 Am. Rep. 553. A Sunday closing law is not unequal because it ex- cepts certain business as necessary. Lie- berman v. State, 42 N. W. Rep. 419 (Neb.). A liquor seller may not be for- bidden to sign the bond of another liquor seller. Euhn o. Common Coun- cil,. 70 Mich. 534. Nor may the right to sell liquor, where a lawful business, be made dependent on the ca- CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 483 incompetent persons to exercise a statutory control over their estates for their assistance, comfort, or support, or for the dis- charge of legal or equitable liens upon their property ; but every one has a right to demand that he be governed by general rules, and a special statute which, -without his consent, singles his case out as one to be regulated by a different law from that which is applied in all similar cases, would not be legitimate legislation, but would be such an arbitrary mandate as is not within the pro- vince of free governments. Those who make the laws " are to govern by promulgated, established laws, not to be varied in par- ticular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plough." ^ This is a maxim in constitutional law, and by it we may test the authority and binding force of legislative enactments.^ 1 Locke on Civil Government, § 142 ; State V. Duffy, 7 Nev. 349 ; Strauder o. W. Virginia, 100 U. S. 303 ; Bernier v. Kussell, 89 111. 60. 2 In Lewis k. Webb, 3 Me. 326, the validity of a statute granting an appeal from a decree of the Probate Court in a particular case came under review. The court say : " On principle it can never be within the bounds of legitimate legisla- tion to enact a special law, or pass a re- solve dispensing with the general law in a particular case, and granting a privilege and indulgence to one man, by way of exemption from the operation and effect of such general law, leaving all other per- sons under its operation. Such a law is neither just nor reasonable in its conse- quences. It is our boast that we live under a government of laws, and not of men ; but 'this can hardly be deemed a blessing, unless those laws have for their immovable basis the great principles of constitutional equality. Can it be sup- posed for a moment that, if the legisla- ture should pass a general law, and add a section by way of proviso, that it never should be construed to have any opera- tion or effect upon the persons, rights, or property of Archelaus Lewis or John Gordon, such a proviso would receive the sanction or even the countenance of a court of law t And how does the sup- posed case differ from the present ? A re- solve passed after the general law can produce only the same effect as such pro- viso. In fact, neither can have any legal operation." See also Durham n. Lewis- ton, 4 Me. 140; Holden v. James, 11 Mass. 396; Piquet, Appellant, 5 Pick. 65; Budd V. State, 3 Humph. 483 ; Van Zant v. Wad- dell, 2 Yerg. 260 ; People v. Frisbie, 26 Cal. 135 ; Davis v. Menasha, 21 Wis. 491 ; Lancaster v. Barr, 25 Wis. 660 ; Brown V. Haywood, 4 Heisk. 357 ; Wally's Heirs V. Kennedy, 2 Yerg. 554 ; s. c. 24 Am. Dec. 511. In the last case it is said: "The rights of every individual must stand or fall by the same rule or law that governs every other member of the body politic, or land, under similar circum- stances ; and every partial or private law, which directly proposes to destroy or af- fect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were it otherwise, odious in- dividuals and corporations would be gov- erned by one law ; the mass of the com- munity and those who made the law, by another ; whereas the like general law affecting the whole community equally could not have been passed." Special burdens cannot be laid upon a particular class in the community. Millett v. Peo- ple, 117 111. 294. Miners and manufac- turers alone cannot be forbidden to pay in store orders. State v. Goodwill, 10 S. E. Rep. 285 (W. Va.).. See, also, God- charles v. Wigeman, 113 Pa. St. 431; State V. Fire Creek, &c. Co., 10 S. E. Bep. 288 (W. Va.). Recovery against newspaper publishers for libel cannot be limited to actual damage provided a re- traction is published and thet libel was published in good faith. Park v. Detroit 484 CONSTITUTIONAL LIMITATIONS. [CH. XI. Special courts cannot be created for the trial of the rights and obligations of particular parties ; ^ and those cases in which legis- lative acts granting new trials or other special relief in judicial proceedings, wliile they have been regarded as usurpations of judicial authority, have also been considered obnoxious to the objection that they undertook to suspend general laws in special cases. The doubt might also arise whether a regulation made for any one class of citizens, entirely arbitrary in its character, and restricting their rights, privileges, or legal capacities in a manner before unknown to the law, could be sustained, notwithstanding its generality. Distinctions in these respects must rest upon some reason upon which they can be defended, — like the want of capa- city in infants and insane persons ; and if the legislature should undertake to provide that persons following some specified lawful trade or employment should not have capacity to make contracts, or to receive conveyances, or to build such houses as others were allowed to erect, or in any other way to make such use of their prop- erty as was permissible to others, it can scarcely be doubted that the act would transcend the due bounds of legislative power, even though no express constitutional provision could be pointed out with which it would come in conflict. To forbid to an individual or a class the right to the acquisition or enjoyment of property in such manner as should be permitted to the community at large, would be to deprive them of liberty in particulars of primary importance to their " pursuit of happiness ; " ^ and those who should claim a FreePressCo.,40N.W.Eep.73l(Mich.). particular bank. Bank of the Stater. Otherwise in Minnesota. Allen w. Pio- Cooper, 2 Yerg. 599 ; s. c. 24 Am. Dec. neer Press Co., 40 Minn. 117. .See 617. Compare Durkee u. Janesville, 28 further, Officer v. Young, 5 Yerg. 320 ; Wis. 464, in which it was declared that a Griffin v. Cunningham, 20 Gratt. 31 (an in- special exemption of the city of Janesville structire case) ; Dorsey v. Dorsey, 37 Md. from the payment of costs in any pro- 64 ; s. c. 11 Am. Hep. 628 ; Trustees v. ceeding against it to set aside a tax or Bailey, 10 Fla. 238 ; Lawson v. Jeffries, 47 tax sale was void. And see Memphis v. Miss. 686 ; s. c. 12 Am. Eep. 342 ; Arnold Fisher, 9 Bax. 240. In Matter of Nichols, V. Kelley, 5 W. Va. 446 ; ante, pp. 113-115. 8 B. I. 60, a special act admitting a tort But an act was sustained in Minnesota debtor committed to jail to take the poor which gave one individual a right of ap- debtor's oath and be discharged, was held peal from the legal tribunal and denied it void. The legislature cannot confer upon to others. Dike v. State, 38 Minn. 366. a corporation privileges or exemptions And physicians who have not a diploma which it could not confer constitutionally and have not practised a certain time in upon a private person. Gordon v. Build- the State may be required to take out a ing Association, 12 Bush, 110. As to license. State o. Green, 112 Ind. 462 ; what is not a. violation of this principle, People V. Phippen, 37 N. W. Eep. 888. see United States «. Union Pac. E. E. Co., Contra in New Hampshire, State v. Pen- 98 U. S. 569. noyer, 18 Atl. Eep. 878 j State v. Hin- = Burlamaqui (Politic. Law, c. 3, § 15) man, id. 194. See further cases, p. 745, defines natural liberty as the right which note 4, post. nature gives to all mankind of disposing ' As, fot iiistance, the debtors of a of their persons and property after the CH. XI.] PKOTEOTION BY " THE LAW OF THE LAND." 485 right to do so ought to be able to show a specific authority there- for, instead of calling upon others to show how and where the authority is negatived. Equality of rights, privileges, and capacities unquestionably should be the aim of the law; and if special privileges are granted, or special burdens or restrictions imposed in any case, it must be presumed that the legislature designed to depart as little as possible from this fundamental maxim of government.^ The State, it is to be presumed, has no favors to bestow, and designs to inflict no arbitrary deprivation of rights. Special privileges are always obnoxious, and discriminations against per- sons or classes are still more so; and, as a rule of construction, it is to be presumed they were probably not contemplated or manner they judge most consonant to their, happiness, on condition of their act- ing within the limits of the law of nature, and so as not to interfere with an equal exercise of the same rights by other men. See 1 Bl. Com. 125. Lieber says : " Lib- erty of social man consists in the protec- tion of unrestrained action in as high a degree as the same claim of protection of each individual admits of, or in the most efficient protection of his rights, claims, interests, as a man or citizen, or of his iiumanity manifested as a social being." Civil Liberty and Self -Govern- ment. "Legal Liberty," says Mackin- tosh, in his essay on the Study of the Law of Nature and of Nations, "con- sists in every man's security against wrong." 1 In the Case of Monopolies, Darcy i?. Allain, 11 Rep. 84, the grant of an exclu- sive privilege of making playing cards was adjudged void, inasmuch as "the sole trade of any mechanical artifice, or any other Inonopoly, is not only a dam- age and prejudice to those who exercise the same trade, but also to all other sub- jects ; far the end of all these monopolies is for the private gain of the patentees." And see Norwich Gas Light Co. v. Nor- wich City Gag Co., 25 Conn. 19 ; State v. Cincinnati, &c. Gas Co., 18 Ohio St. 262. Compare with these. State v. Milwaukee Gas Light Co., 29 Wis. 454. On this ground it has been denied that the State can exercise the power of taxation on behalf of corporations who undertake to make or to improve the thoroughfares of trade and travel for their own benefit. The State, it is said, can no more tax the community to set one class of men up in business than another ; can no more sub- sidize one occupation than another ; can no more make donations to the men who build and own railroads in consideration of expected incidental benefits, than it can make them to the men who build stores or manufactories in consideration of similar expected benefits. People v. Township Board of Salem, 20 Mich. 452. See further, as to monopolies, Chicago v. RumpfE, 45 111. 90 ; Gale v. Kalamazoo, 23 Mich. 344. In State v. Mayor, &c. of Newark, 35 N. J. 157, 8. c. 10 Am. Rep. 223, the doctrine of the text was applied to a case in which by statute the property of a society had been exempted from " taxes and assessments ; " and it was held that only the ordinary public taxes were meant, and the property might be subjected to local assessments for munici- pal purposes. State grants are not ex- clusive unless made so in express terms. Tuckahoe Canal Co. v. Railroad Co., 11 Leigh, 42 ; s. c. 36 Am. Sec. 374 ; Gaines V. Coates, 51 Miss. 335 ; Wright v. Nagle, 101 U. S. 791. Where monopolies are forbidden, it is nevertheless competent to give exclusive rights to a water company to supply a city for a term of years. Mem- phis V. Water Co., 5 Heisk. 495. A cor- poration formed under a general law allow- ing formation of gas companies cannot as part of its corporate purposes include the purchase and holding of shares of ex- isting gas companies, thus creating a monopoly. People v. Chicago Gas Trust Co., 22 N. E. Rep. 798 (III.). See People V. Refining Co., 7 N. Y. Supp. 400. - 486 CONSTITUTIONAL LIMITATIONS. [CH. XI, designed. It has been held that a statute requiring attorneys to render services in suits for poor persons without fee or reward, was to he confined strictly to the cases therein prescribed ; and if by its terms it expressly covered civil cases only, it could not be extended to embrace defences of criminal prosecutions.^ So where a constitutional provision confined the elective franchise to " white male citizens," and it appeared that the legislation of the State had always treated of negroes, mulattoes, and other colored persons in contradistinction to white, it was held that although quadroons, being a recognized class of colored persons, must be ex- cluded, yet that the rule of exclusion would not be carried further.^ So a statute making parties witnesses against themselves cannot be construed to compel them to disclose facts which would subject them to criminal punishment.^ And a statute which authorizes summary process in favor of a bank against debtors who have by express contract made their obligations payable at such bank, being in derogation of the ordinary principles of private right, must be subject to strict construction.* These cases are only illustrations of a rule of general acceptance.^ There are unquestionably cases in which the State may grant privileges to specified individuals without violating any constitu- tional principle, because, from the nature of the case, it is impos- sible they should be possessed and enjoyed by all ; ^ and if it is important that they should exist, the proper State authority must be left to select the grantees.'^ Of this class are grants of the franchise to be a corporation.® Such grants, however, which con^- 1 Webb,*. Baird, 6 Ind. 13. * Bank of Columbia v. Okely, 4 Wheat. 2 People V. Dean, U Mich. 406. See 285. Bailey v. Fiske, 34 Me. 77 ; Monroe », ^ gee 1 Bl. Com. 89 and note. Collins, 17 Ohio St. 665. The decisions 6 Mason v. Bridge Co., 17 W. Va. 396. in Ohio were still more liberal, and ranked But a franchise is not necessarily exclu> as white persons all who had a prepon- sive so long as there is nothing to prevent derance of white blood. Gray w. State, 4 granting like power to another corporation. Ohio, 353 ; Jeffires v. Ankeny, 11 Ohio, Matter of Union Ferry Co., 98 N. Y. 139. 372 J Thacker v. Hawk, 11 Ohio, 376 ; ' In Gordon ». Building Assodation, Anderson v. Millikin, 9 Ohio St. 568. 12 Bush, 110, it is decided that a special But see Van Camp v. Board of Education, privilege granted to a particular corpora- Ohio St. 406. . Happily all such ques- tion to take an interest on its loans tions are now disposed of by constitutional greater than the regular interest allowed amendments. It seems, however, in the by law is void ; it not being granted in opinion of the Supreme Court of Call- consideration of any obligation assumed fornia, that these amendments do not by the corporation to serve the public preclude a State denying to a race, e. g. ^ That proper grants of this sort are the Chinese, the right to testify against not to be regarded as partial legislation, other persons. People v. Brady, 40 Cal. see Tipton v. Locomotive Works, 103 198 ; s. c. 6 Am. Rep. 604. U. S. 523 ; s. c. 1 Am. & Eng. R. R. Cas. 8 Broadbent v. State, 7 Md. 416. See 517 ; North and S. Ala. R. R. Co. u. Morris, Enowles v. People, 16 Mich. 408. 66 Ala. 19a CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 487 fer upon a few persons what cannot be shared by the many, and which, though supposed to be made on public grounds, are never- theless frequently of great value to the corporators, and therefore sought with avidity, are never to be extended by construction beyond the plain terms in which they are conferred. No rule is better settled than that charters of incorporation are to be con- strued strictly against the corporators.^ The just presumption in every such case is, that the State has granted in express terms all that it designed to grant at all. "When a State," says the Supreme Court of Pennsylvania, " means to clothe a corporate body with a portion of her own sovereignty, and to disarm herself to that extent of the power which belongs to her, it is so easy to say so, that we will never believe it to be meant when it is not said. ... In the construction of a charter, to be in doubt is to be resolved ; and every resolution which springs from doubt is against the corporation. If the usefulness of the company would be increased by extending [its privileges], let the legislature see to it, but let it be remembered that nothing but plain English words will do it."^ This is sound doctrine, and should be vigilantly observed and enforced. 1 Providence Bank v. Billings, 4 Pet. 614; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 544 ; Perrine v. Ches- apeake & Delaware Canal Co., 9 How. 172; Bichmond, &c. B. B. Co. v. Louisa E. R. Co., 13 How. 71 ; Bradley v. N. Y. & N. H. B. E. Co., 21 Conn. 294 ; Parker V. Sunbury & Erie B. R. Co., 19 Pa. St. 211; Wales v. Stetson, 2 Mass. 143; Chenango Bridge Co. v. Binghamton Bridge Co., 27 N. T. 87, and 3 WaU. 51 ; State V. Krebs, 64 N. C. 604. ' Pennsylvania R. B. Ca v. Canal Commissioners, 21 Pa. St. 9, 22. And see Commonwealth v. Pittsburg, &c. B. B. Co., 24 Pa. St. 159; Chenango Bridge Co. V. Binghamton Bridge Co., 27 N. Y. 87, 98, per Wright, J. ; Baltimore v. Balti- more, &o. B. R. Co., 21 Md. 50 ; Tucka- hoe Canal Co. v. Railroad Co., 11 Leigh, 42; 8. c. 36 Am. Dec. 374; Richmond V. Bichmond & Danville R. B. Co., 21 Gratt. 604; Holyoke Co. ». Lyman, 15 Wall. 500 ; Delancey v. Insurance Co., 52 N. H. 581 ; Spring Valley Water Works V. San Francisco, 62 Cal. Ill; Gaines v. Coates, 51 Miss. 336. We quote from the Supreme Court of Connecticut in Bradley v. N. Y. & N. H. B. B. Co., 21 Conn. 294, 306 : " The rules of construc- tion which apply to general legislation; in regard to those subjects in which the public at large are interested, are essen- tially different from those which apply to private grants to individuals, of powers or privileges designed to be exercised with special reference to their own ad- vantage, although involving in their exercise incidental benefits to the com- munity generally. The former are to be expounded largely and beneficially for the purposes for which they were en- acted, the latter liberally, in favor of the public, and strictly as against the gran- tees. The power in the one case is origi- nal and inherent in the State or sovereign power, and is exercised solely for the general good of the community; in th» other it is merely derivative, is special if not exclusive in its character, and is in derogation of common right, in the sense that it confers privileges to which the members of the community at large are not entitled. Acts of the former kind, being dictated solely by a regard to the benefit of the public generally, attract none of that prejudice or jealousy towards them which naturally would arise towards those of the other description, from the consideration that the latter were obtained with a view to the benefit of particular individuals, and the apprehension that 488 CONSTITUTIONAL LIMITATIONS. [CH. XI. And this rule is not confined to the grant o£ a corporate fran- chise, but it extends to all grants of franchises or privileges by the State to individuals, in the benefits of which the people at large cannot participate. " Private statutes," says Parsons, Ch. J., " made for the accommodation of particular citizens or corpora- tions, ought not to be construed to affect the rights or privileges of others, unless such construction results from express words or from necessary implication." ^ And the grant of ferry rights, or the right to erect a toll-bridge, and the like, is not only to be construed strictly against the grantees, but it will not be held to exclude the grant of a similar and competing privilege to others, unless the terms of the grant render such construction imperative.^ their interests might be promoted at the sacrifice or to the injury of those of others whose interests should be equally re- garded. It is universally understood to be one of the implied and necessary con- ditions upon which men enter into society and form governments, that sacrifices must sometimes be required of individuals for the general benefit of the community, for which they have no rightful claim to specific compensation; but, as between the several individuals composing the community, it is the duty of the State to protect them in the enjoyment of just and equal rights. A law, therefore, enacted for the common good, and which there would ordinarily be no inducement to pervert from that purpose, is entitled to be viewed with less jealousy and distrust than one enacted to promote the interests of particular persons, and which would constantly present a motive for encroach- ing on the rights of others." ^ Coolidge V. Williams, 4 Mass. 140. See also Dyer v. Tuscaloosa Bridge Co., 2 Port. (Ala.) 296 ; s. o. 27 Am. Dec. 655 ; Grant v. Leach, 20 La. Ann. 829. In Sprague :;. Birdsall, 2 Cow. 419, it was held that one embarking upon the Cayuga Lake six miles from the bridge of the Cayuga Bridge Co., and crossing the lake in an oblique direction, so as to land within sixty rods of the bridge, was not liable to pay toll under a provision in the charter of said company which made it unlawful for any person to cross within three miles of the bridge without paying toll. In another case arising under the same charter, which authorized the com- pany to build a bridge across the lake or the outlet thereof, and to rebuild, in case it should be destroyed or carried away by the ice, and prohibited all other per- sons from erecting a bridge within three miles of the place where a bridge should be erected by the company, it was held, after the company had erected a bridge across the lake and it had been carried away by the ice, that they had no authority afterwards to rebuild across the outlet of the lake, two miles from the place where the first bridge was built, and that the restricted limits were to be measured from the place where the first bridge was erected. Cayuga Bridge Co. V. Magee, 2 Paige, 116 ; s. c. 6 Wend. 85. In Chapin ». The Paper Works, 30 Conn. 461, it was held that statutes giving a preference to certain creditors over others should be construed with reason-ible strictness, as the law favored equality. In People v. Lambier, 5 Denio, 9, it ap- peared that an act of the legislature had authorized a proprietor of lands lying in the East River, which is an arm of the sea, to construct wharves and bulkheads in the river, in front of his land, and there was at the time a public highway through the land, terminating at the river. Held, that the proprietor could not, by filling up the land between the shore and the bulkhead, obstruct the public right of passage from the land to the water, but that the street was, by operation of law, extended from the former terminus over the newly made land to the water. Com- pare Commissioners of Inland Fisheries ». Holyoke Water Power Co., 104 Mass. 446 ; 8. c. 6 Am. Eep. 247 ; Kingsland v. Mayor, &o., 35 Hun, 458; Detroit «. Backus, 49 Mich. 110. 2 Mills V. St. Clair County, 8 How. CH. XI.] PEOTECTION BY "THE LAW OF THE LAND." 489 The Constitution of the United States contains provisions which are important in this connection. One of these is, that the citi- zens of each State shall be entitled to all the privileges and im- munities of citizens of the several States,^ and all persons born or naturalized in the United States, and subject to its jurisdiction, are declared to be citizens thereof, and of the State wherein they reside.2 The States are also forbidden to make or enforce any law which shall abridge the privileges or immunities of the citi- zens of the United States,^ or to deprive any person of life, liberty, 569 ; Mohawk Bridge Co. v. Utica & S. E. R. Co., 6 Paige, 554 ; Chenango Bridge Co. V. Binghamton Bridge Co., 27 N. Y. 87 ; s. c. 3 Wall. 51 ; Montjoy v. Pillow, 64 Miss. 705. See cases, ante, p. 47.3, note 6. Compare Hackett v. Wilson, 12 Oreg.25. A ferry franchise may be limited to carrying one way, and another granted for carrying the other. Power v. Athens, 99 N. Y. 592. An exclusive ferry fran- chise over a river within certain limits does not prevent carrying up and down the river from a point within the limits. Broadnax v. Baker, 94 N. C. 675. See Hunter v. Moore, 44 Ark. 184. 1 Const, of United States, art. 4, § 2 See ante, pp. 24, 25. ' Const, of United States, 14th Amend- ment. ' " The line of distinction between the privileges and immunities of citizens of the United States and those of citizens of the several States must be traced along the boundary of their respective spheres of action, and the two classes must be as different in their nature as are the func- tions of the respective goverpments. A citizen of the United States, as such, has the right to participate in foreign and inter-state commerce, to have the benefit of the postal laws, to make use in com- mon with others of the navigable waters of the United States, and to pass from State to State, and into foreign countries, because over all these subjects the juris- diction of the United States extends, and they are covered by its laws. Story on Const. 4th ed. § 1937. These, therefore, are among the privileges of citizens of the United States. So every citizen may petition the federal authorities which are get over him, in respect to any matter of public concern ; may examine the public records of the federal jurisdiction ; may visit the seat of government without be- ing subjected to the payment of a tax for the privilege : Crandall v. Nevada, 6 Wall. 35 ; may be purchaser of the public lands on the same terms with others; may par- ticipate in the government if he comes within the conditions of suffrage, and may demand- the care and protection of the United States when on the high seas or within the jurisdiction of a foreign government. Slaughter House Cases, 16 Wall. 30. The privileges suggest the immunities. Wherever it is the duty of the United States to give protection to a citizen against any harm, ii^convenience, or deprivation, the citizen is entitled to an immunity which pertains to federal citizenship. "One very plain and unquestionable immunity is exemption from any tax, burden, or imposition under State laws, as a condition to the enjoyment of any right or privilege under the laws of the United States. A State, therefore, can- not require one to pay a tax as importer, under the laws of Congress, of foreign merchandise : Ward v. Maryland, 12 Wall. 163; nor impose a tax upon travellers passing by public conveyances out of the .State: Crandall v. Nevada, 6 Wall. 35; nor impose conditions to the right of citizens of other States to sue its citizens in the federal courts. Insurance Co. v. MorsQ, 20 Wall. 445. These instances sufSciently indicate the general rule. Whatever one may claim as of right under the Constitution and laws of the United States by virtue of his citizenship, is a privilege of a citizen of the United States. Whatever the Constitution and laws of the United States entitle him to exemption from, he may claim an immu- nity in respect to. Slaughter House Cases, 16 Wall. 36. And such a right or privilege is abridged whenever the State law interferes with iiny legitimate opera- 490 CONSTITUTIONAL UMITATIONS. [CH. XL or property, without due process of law, or to deny to any person within their jurisdiction the equal protection of the laws.^ Al- though the precise meaning of " privileges and immunities " is not very conclusively settled as yet, it appears to be conceded that the Constitution secures in each State to the citizens of all other States the right to remove to, and carry on business therein ; the right by the usual modes to acquire and hold prop- erty, and to protect and defend the same in the law ; the right to the usual remedies for the collection of debts and the enforcement of other personal rights ; and the right to be exempt, in property and person, from taxes or burdens which the property, or persons, of citizens of the same State are not subject to.^ To this extent, at least, discriminations could not be made by State laws against them. But it is unquestionable that many other rights and priv- ileges may be made — as they usually are — to depend upon actual residence : such as the right to vote, to have the benefit of exemption laws, to take fish in the waters of the State, and the like. And the constitutional provisions are not violated by a statute which allows process by attachment against a debtor not a resident of the State, notwithstanding such process is not ad- missible against a resident." The protection by due process of law has already been considered. It was not within the power of the States before the adoption of the fourteenth amendment, to deprive citizens of the equal protection of the laws ; but there were servile classes not thus shielded, and when -these were made freemen, there were some who disputed their claim to citizenship, and some State laws were in force which established discrimina- tions against them. To settle doubts and preclu(^e all such laws, tion of the federal authority which con- burgh v. Brown, 43 Cal. 43; Bradwell v. cerns his interest, whether it be an State, 16 Wall. 130 ; Minor v. Happersett, authority actively exerted, or resting 21 Wall. 162. See ante, pp. 481, 482, notes, only in the express or implied command Granting licenses for the sale of in- or assurance of the federal Constitution toxicating drinks to males only does not or Laws." Cooley, Principles of Const, violate a constitutional provision which Law, 246. See United States v. Reese, forbids the grant of special privileges or 92 U. S. 214 ; United States v. Cruik- immunities. Blair v. Eilpatrick, 40 Ind. shank, 92 U. S. 542; Hall v. De Cuir, 95 315. U. S. 485; Kirkland v. Hotchkiss, 100 " Corfield v. Coryell, 4 Wash. 380; U. S. 491. Campbell v. Morris, 3 H. & McH. 554 ; 1 Const, of United States, 14th Amend- Crandall «. State, 10 Conn. 339; Oliver ». ment. See cases pp. 14-16, ante. The Washington Mills, 11 Allen, 268. fourteenth amendment is violated by a ' Campbell v. Morris, 3 H. & McH. statute which allows the overseers of the 554; State v. Medbury, 3 E. L 138. And poor to commit paupers and vagrants to see generally the cases cited, ante, p. 25, the work-house without trial. Portland note. Exemption from garnishment does V. Bangor, 65 Me. 120 ; Dunn v. Burleigh, not apply to a non-resident debtor except 62 Me. 24. It does not confer the right by express provision. Kile v. Montgom- of suffrage upon females. Van Valken- ery, 73 Ga. 337. CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 491 the fourteenth amendment was adopted ; and the same securities which one citizen may demand, all others are now entitled to. Judicial Proceedings. Individual citizens require protection against judicial action as well as against legislative ; and perhaps the question, what con- • stitutes due process of law, arises as often when judicial action is in question as in any other cases. But it is not so difficult here to arrive at satisfactory conclusions, since the bounds of the judi- cial authority are much better defined than those of the legisla- tive, and each case can generally be brought to the test of definite and well-settled rules of law. The proceedings in any court are void if it wants jurisdiction of the case in which it has assumed to act. Jurisdiction is, first, of the subject-matter ; and, second, of the persons whose rights are to be passed upon.' A court has jurisdiction of any subject-matter, if, by the law of its organization, it has authority to take cognizance of, try, and determine cases of that description. If it assumes to act in a case over which the law does not give it authority, the proceedmg and judgment will be altogether void, and rights of property can- not be devested by means of them. It is a maxim in the law that consent can never confer juris- diction : 2 by which is meant that the consent of parties cannot empower a court to act upon subjects which are riot submitted to its determination and judgment by the law. The law creates courts, and upon considerations of general public policy defines and limits their jurisdiction; and this can neither be enlarged nor restricted by the act of the parties. Accordingly, where a court by law has no jurisdiction of the subject-matter of a controversy, a party whose rights are sought 1 " Jurisdiction is a power constitu- Morton, 2 Ohio St. 26 ; Gilliland v. Admin- tionally conferred upon a court, a single istrator of Sellers, 2 Ohio St. 223 ; Dicks judge, or a magistrate, to take cognizance v. Hatch, 10 Iowa, 380; McCall v. Peachey, and decide causes according to law, and 1 Call, 65 ; Bents v. Graves, 3 McCord, to carry their sentence into execution. 280 ; Overstreet v. Brown, 4 McCord, 79 ; The tract of land within which a court, Green v. Collins, 6 Ired. 139 ; Bostwick v. judge, or magistrate has jurisdiction is Perkins, 4 Ga. 47 ; Georgia R. R., &o. v. called his territory ; and his power in rela- Harris, 5 Ga. 527 ; State v. Bonney, 84 tion to his territory is called his territorial Me. 223 ; Little ». Fitts, 33 Ala. 343 ; Ginn jurisdiction." 3 Bouv. Inst. 71. v. Rogers, 9 111. 131 ; Neill v. Keese, 5 2 CofBn V. Tracy, 3 Caines, 129; Blin Tex. 28; Ames v. Boland, 1 Minn. 365; : V. Campbell, 14 Johns. 432 ; Cnyler v. Brady v. Richardson, 18 Ind. 1 ; White ' Rochester, 12 Wend. 165; Dudley v. v. Buchanan, 6 Cold. 32; Andrews v. Mayhew, 3 N. Y. 9 ; Preston v. poston, Wheaton, 28 Conn. 112 ; CoUamer v. 12 Pick. 7 ; Chapman v. Morgan, 2 Greene, Page, 85 Vt. 387. (Iowa), 374; Thompson v. Steamboat 492 ■ CONSTITUTIONAL LIMITATIONS. [CH. XL to be affected by it is at liberty to repudiate its proceedings and refuse to be bound by them, notwithstanding he may once have consented to its action, either by voluntarily commencing the proceeding as plaintiff', or as defendant by appearing and pleading to the merits, or by any other formal or informal action. This right he may avail himself of at any stage of the case ; and the maxim that requires one to move promptly who would take advantage of an irregularity does not apply here, since this is not mere irregular action, but a total want of power to act at all. Consent is sometimes implied from failure to object; but there can be no waiver of rights by laches in a case where consent would be altogether nugatory .^ In regard to private controversies, the law always encourages voluntary arrangements ; ^ and the settlements which the parties may make for themselves, it allows to be made for them by arbitrators mutually chosen. But the courts of a country cannot have those controversies referred to them by the parties which the law-making power has seen fit to exclude from their cogni- zance. If the judges should sit to hear such controversies, they would not sit as a court ; at the most they would be arbitrators only, and their action could not be sustained on that theory, unless it appeared that the parties had designed to make the judges their arbitrators, instead of expecting from them valid judicial action as an organized court. Even then the decision could not be binding as a judgment, but only as an award ; and a mere neglect by either party to object to the want of jurisdiction could not make the decision binding upon him either as a judg- ment or as an award. Still less could consent in a criminal case bind the defendant; since criminal charges are not the subject of arbitration, and any infliction of criminal punishment upon an individual, except in pursuance of the law of the land, is a wrong done to the State, whether the individual assented or not. Those cases in which it has been held that the constitutional right of trial by jury cannot be waived are strongly illustrative of the legal view of this subject.* If the parties cannot confer jurisdiction upon a court by con- sent, neither can they by consent empower any individual other 1 Bostwick V. Perkins, 4 Ga. 47 ; Hill » Brown v. State, 8 Blackf. 561 ; Work V. People, 16 Mich. 351 ; White v. Bu- v. Ohio, 2 Ohio St. 296 ; Cancemi v. Peo- chanan, 6 Cold. 32; Collins u. Collins, 37 pie, 18 N. Y. 128; People v. Smith, 9 Pa. St. 387; Green v. Creighton, 18 Miss. Mich. 193 ; Hill v. People, 16 Mich. 351 j 159. Whorton ii. Morange, 62 Ala. 201 ; Fleish- ^ Moore v. Detroit Locomotive Works, man v. Walker, 91 111. 318 ; Shissler v,. 14 Mich. 266; Coyner v. Lynde, 10 Ind. People", 93 III. 472. See also State v. 282. Turner, 1 Wright, 20. CH. XI.] PEOTECXION BY " THE LAW OF THE LAND." 493 than the judge of the court to exercise its powers. Judges are chosen in such manner as shall be provided by law ; and a stipur lation by parties that any other person than the judge shall exer^ cise his functions in their case would be nugatory, even though the judge should vacate his seat for the purposes of the hearing.^ Sometimes jurisdiction of the subject-matter will depend upon considerations of locality, either of the thing in dispute or of the parties. At law certain actions are local, and others are transi- tory. The first can only be tried where the property which is the subject of the controversy, or in respect to which the contro- versy has arisen, is situated. The United States courts take cognizance of certain causes by reason only of the fact that the parties are residents of different States or countries.^ The ques- tion of jurisdiction in these cases is sometimes determined by the common law, and sometimes is matter of statutory regulation. But there is a class of cases in respect to which the courts of the several States of the Union are constantly being called upon to exercise authority, and in which, while the jurisdiction is con- ceded to rest on considerations of locality, there has not, unfor- tunately,'at all times been entire harmony of decision as to what shall confer jurisdiction. We refer now to suits for divorce from the bonds of matrimony. The courts of one State or country have no general authority to grant divorce, unless for some reason they have control over the particular marriage contract which is sought to be annulled. But what circumstance gives such control ? Is it the fact that the marriage was entered into in such country or State ? Or that the alleged breach of the marriage bond was within that jurisdic- tion ? Or that the parties resided within it either at the time of the marriage or at the time of the offence ? Or that the parties now reside in such State or country, though both marriage and offence may have taken place elsewhere ? Or must marriage, offence, and residence, all or any two of them, combine to confer the authority ? These are questions which have frequently de- manded the thoughtful attention of the courts, who have sought to establish a rule at once sound in principle, and that shall pro- tect as far as possible the rights of the parties, one or the other 1 ■Winche8ter».Ayre8,4 Greene (Iowa), sometimes be treated as void, when he 104. See post, 604, note. was not suable in that court or in that ^ See a case where a judgment of a manner, notwithstanding he may have so United States court was treated as of no submitted himself to the jurisdiction as force, because the court had not jurisdic' to be personally bound. See Georgia tion in respect to the plaintiff. Vose v. R. B. &o. v. Harris, 5 Ga. 527 ; Hinch- Morton, 4 Gush. 27. As to third persons, man v. Town, 10 Mich. 508. a judgment against an individual may 494 CONSTITUTIONAL LIMITATIONS. [CH. XL of whom, unfortunately, under the operation of any rule which can be established, it will frequently be found has been the victim of gross injustice. We conceive the true rule to be that the actual, bona fide resi- dence of either husband or wife within a State will give to that State authority to determine the status of such party, and to pass upon any questions affecting his or her continuance in the mar- riage relation, irrespective of the locality of the marriage, or of any alleged offence ; and that any such court in that State as the legislature may have authorized to take cognizance of the subject may lawfully pass upon such questions, and annul the marriage for any cause allowed by the local law. But if a party goes to a jurisdiction other than that of his domicile for the purpose of procuring a divorce, and has residence there for that purpose only, such residence is not bona fide, and does not confer upon the courts of that State or country jurisdiction over the marriage relation, and any decree they may assume to make would be void as to the other party .^ 1 There are a number of cases in which this subject has been considered. In Inhabitants of Hanover v. Turner, 14 Mass. 227, instructions to a jury were sus- tained, that if they were satisfied the husband, who had been a citizen of Mas- sachusetts, removed to Vermont merely for the purpose of procuring a divorce, and that the pretended cause for divorce arose, if it ever did arise, in Massachu- setts, and that the wife was never within the jurisdiction of the court of Vermont, then and in such case the decree ot di- vorce which the husband had obtained in Vermont must be considered as fraudu- lently obtained, and that it could not op- erate so as to dissolve the marriage be- tween the parties. See also Vischer v. Vischer, 12 Barb. 640 ; and McGiffert v. McGiffert, 31 Barb. 69. In Chase v. Chase, 6 Gray, 157, the same ruling was had as to a foreign divorce, notwithstanding the wife appeared in and defended the foreign suit. In Clark v. Clark, 8 N. H. 21, the court refused a divorce on the ground that the alleged cause of divorce (adul- tery), though committed within the State, was so committed while the parties had their domicile abroad. This decision was followed in Greenlaw v. Greenlaw, 12 N. H. 200. The court say : " If the de- fendant never had any domicile in this State, the libellant could not come here, bringing with her a cause of divorce over which this court had jurisdiction. If at the time of the [alleged offence] the domicile of the parties was in Maine, and the facts furnished no cause for a di- vorce there, she could not come here and allege those matters which had already occurred, as a ground for a divorce under the laws of this State. Should she under suoh circumstances obtain a decree of di- vorce here, it must be regarded as a mere nullity elsewhere." In Frary v. Frary, 10 N. H. 61, importance was attached to the fact that the marriage took place in New Hampshire ; and it was held that the court had jurisdiction of the wife's application for a divorce, notwithstand- ing the offence was committed in Ver- mont, but during the time of the wife's residence in New Hampshire. See also Kimball v. Kimball, 13 N. H. 222 ; Batch- elder v. Batchelder, 14 N. H. 380 ; Pay- son V. Payson, 34 N. H. 518 ; Hopkins v. Hopkins, 85 N. H. 474 ; Foss v. Fobs, 58 N. H. 283; Norris v. Norris, 64 N. H. 523. See Trevino v. Trevino, 54 Tex. 261. In Wilcox v. Wilcox, 10 Ind. 436, it was held that the residence of the libellant at the time of the application for a divorce was sufficient to confer jurisdic- tion, and a decree dismissing the bill be- cause the cause for divorce arose out of the State was reversed. And see Tolen CH. XL] PEOTECTION BY " THE LA.W OF THE LAND. 495 But to render the jurisdiction of a court effectual in any case, it is necessary that the thing in controversy, or the parties in- V. Tolen, 2 Blackf. 407. Compare Jack- Bon V. Jackson, 1 Johns. 424 ; Barber v. Boot, 10 Mass. 260 ; Borden v. Fitch, 15 Johns. 121 ; Bradshaw v. Heath, 13 Wend. 407. In any of these cases the question of actual residence will be open to inquiry whenever it becomes important, notwith- standing the record of proceedings is in due form, and contains the affidavit of residence required by the practice. Leith V. Leith, 39 N. H. 20. And see McGifiert V. McGiffert, 31 Barb. 69 ; Todd v. Kerr, 42 BaVb. 817 ; Hoffman v. Hoffman, 46 K. Y. 80 ; People v. Dawell, 25 Mich. 247 ; Beed v. Reed, 52 Mich. 117 ; Gregory V. Gregory, 7& Me. 187 ; NefE u. Beau- champ, 74 Iowa, 92; Chaney v. Bryan, 16 Lea, 589. In a purely collateral civil action, jurisdiction is conchisively pre- sumed. Waldo V. Waldo, 52 Mich. 94. And see Van Orsdal v. Van Orsdal, 67 Iowa, 85. The Pennsylvania cases agree with those of New Hampshire, in holding that a divorce should not be granted unless the cause alleged occurred while the com- plainant had domicile within the State. Dorsey v. Doreey, 7 Watts, 849 ; HoUis- teru. HoUlster, 6 Pa. St. 449 ; McDerraott's Appeal, 8 W. & S. 251. And they hold also that the injured party in the mar- riage relation must seek redress in the forum of the defendant, unless where such defendant has removed from what was before the common domicile of both. Calvin v. Reed, 35 Pa. St. 375 ; Elder v. Reel, 62 Pa. St. 308; s. c. 1 Am. Rep. 414. If a divorce is procured on publication in anothier State from that of the hus- band's domicile, where the offence was committed,it is a nullity in the latter State. Flower v. Flower, 42 N. J. Eq. 152. See Cook V. Cook, 56 Wis. 195. If one is in good faith a resident, his motive in coming to the State is immaterial. Colburn v. Colbum, 70 Mich. 647; Gregory v. Gregory, 76 Me. 535. But residence must be actual, not merely legal. Tipton v. Tipton, 87 Ky. 243. For cases supporting to a greater or less extent the doctrine stated in the text, see Harding v. Alden, 9 Greenl. 140; Ditson v. Ditson, 4 R. 1. 87 ; Pawling V. Bird's Ex'rs, 13 Johns. 192 ; Kerr v. Kerr, 41 N. Y. 272 ; Harrison v. Harrison, 19 Ala. 499; Thompson v. State, 28 Ala. 12 ; Cooper v. Cooper, 7 Ohio, 594 ; Mansfield v. Mclntyre, 10 Ohio, 28; Smith v. Smith, 4 Greene (Iowa), 266 ; Yates v. Yates, 13 N. J. Eq. 280 ; Maguire v. Maguire, 7 Dana, 181 ; Waltz V. Waltz, 18 Ind. 449; Hull v. Hull, 2 Strob. Eq. 174 ; Manley v. Man- ley, 4 Chand. 97 ; Hubbell v. Hubbell, 3 Wis. 662 ; Gleasoii v. Gleason, 4 Wis. 64 ; Hare v. Hare, 10 Tex. 355 ; D'Auvilliers V. De Livaudais, 82 La. Ann. 605 ; Gettys V. Gettys, 3 Lea, 260 ; Smith v. Smith, 19 Neb. 706. And see Story, Confl. Laws, § 230 a ; Bishop on Mar. and Div. (Ist ed.) § 727 et seq. ; Ibid. (4th ed.) Vol. II. § 155 a seq. The cases of Hoffman v. Hoffman, 46 N. Y. 30; B. c. 7 Am. Rep. 299 ; Elder v. Reel, 62 Pa. St. 308; s. o. 1 Am. Rep. 414; People V. Dawell, 25 Mich. 247 ; Strait i;. Strait, 3 Mc Arthur, 415; State ». Arm- ington, 25 Minn. 29; Sewall v. Sewall, 122 Mass. 156; s. c. 23 Am. Rep. 299; Hood V. State, 56 Ind. 263; s. c. 26 Atp. Rep. 21 ; Litowich v. Litowich, 19 Kan. 451 ; 8. c. 27 Am. Rep. 145, are very ex- plicit in declaring that where neither party is domiciled within a particular State, its courts can have no jurisdiction in respect to their marital status, and any decree of divorce made therein must be nugatory. A number of the cases cited hold that the wife may have a domicile separate from the husband, and may therefore be entitled to a divorce, though the husband never resided in the State. These cases proceed upon the theory that, although in general the domicile of the husband is the domicile of the wife, yet that if he be guilty of such act or derelic- tion of duty in the relation as entitles her to have it partially or wholly dissolved, she is at liberty to establish a separate jurisdictional domicile of her own. Dit- son V. Ditson, 4 R. I. 87 ; Harding v. Al- den, 9 Me. 140 ; Maguire v. Maguire, 7 Dana, 181 ; Hollister v. Hollister, 6 Pa. St. 449 ; Derby v. Derby, 14 111. App. 645. The doctrine in New York seems to be, that a divorce obtained in another State, without personal service of pro- cess or appearance of the defendant, is absolutely void : Vi sober v. Vischer, 12 .496 CONSTITUTIONAL LIMITATIONS. [CH. XL terested, be subjected to the process of the court. Certain cases are said to proceed in rem, because they take notice rather of the thing in controversy than of the persons concerned ; and the pro- cess is served upon that which is the object of the suit, without specially noticing the interested parties ; while in other cases the parties themselves are brought before the court by process. Of the first class, admiralty proceedings are an illustration'; the court acquiring jurisdiction by seizing the vessel or other thing to which the controversy relates. In cases within this class, notice to all concerned is required to be given, either personally or by some specif of publication or proclamation ; and if not given, the court which had jurisdiction of the property will have none to render judgment.^ Suits at the common law, however, proceed against the parties whose interests are sought to be af- fected ; and only those persons are concluded by the adjudication who are served with process, or who voluntarily appear.^ Some Barb. 640; McGiffert v. McGiffert, ,31 Barb. 69 ; Todd v. Kerr, 42 Barb. 317 ; People V. Baker, 76 N. Y. 78 ; s. c. 32 Am. Eep. 274 ; Cross v. Cross, 108 N. Y. 628; though there is actual notice. O'Dea V. O'Dea, 101 N. Y. 23. So in Ontario, Magurn v. Magum, 11 Ont. App. 178. See Cox v. Cox, 19 Ohio St. 502 ; s. c. 2 Am. Rep. 415. An appearance by de- fendant afterwards for the purposes of a motion to set aside the decree, which motion was defeated on technical grounds, will not affect tlie question. Hoffman v. Hoffman, 46 N. Y. 30 ; s. o. 7 Am. Eep. 299. Upon the whole subject of jurisdic- tion in divorce suits, no case in the books is more full and satisfactory than that of Ditson V. Ditson, 4 R. I. 87, which re- views and comments upon a number of the cases cited, and particularly upon the Massachusetts cases of Barber v. Root, 10 Mass. 260 ; Inhabitants of Hanover v. Turner, 14 Mass. 227 ; Harteau v. Har- teau, 14 Pick. 181 ; and Lyon v. Lyon, 2 Gray, 367. The divorce of one party divorces both. Cooper ». Cooper, 7 Ohio, 594. And will leave both at liberty to enter into new marriage relations, un- less the local statute expressly forbids the guilty party from contracting a second marriage. See Commonwealth ». Put- nam, 1 Pick. 136; Baker ». People, 2 Hill, 826. A party who has gone into another State and procured a divorce will not be heard to allege his own fraud to impeach it. Elliott V. Wohlfrom, 55 Cal. 384. A divorce good at the place of domicile will be sustained in England though the cause would not sustain a divorce there. Harvey v. Farnie, L. R. 8 App. Cas. 43 ; Turner i>. Thompson, L. R. 13 P. D. 37. 1 Doughty V. Hope, 3 Denio, 594. See Matter of Empire City Bank, 18 N. Y. 199 ; Nations v. Johnson, 24 How. 204, 205; Blackwell on Tax Titles, 213. =* Jack V. Thompson, 41 Miss^ 49. As to the right of an attorney.to notice of pro- ceedings to disbar him, see notes to pp. 410, 411, and 498. " Notice of some kind is the vital breatli that animates judicial jurisdiction over the person. It is the primary element of the application of the judicatory power. It is of the essence of a cause. ^ Without it there cannot be parties, and without parties there may be the form of a sentence, but no judgment obligating the person." See Bragg'a Case, 11 Coke, 99 o; Rex w.. Chancellor of Cambridge, 1 Str. 567; Cooper v. Board of Works, 14 C. B. n. s. 194 ; Meade V. Deputy Marshal, 1 Brock. 324 ; Goet- cheus V. Mathewson, 61 N. Y. 420; Un- derwood V. McVeigh, 23 Gratt. 409 ; Mc- Veigh V. United States, 11 Wall. 259; Littleton v. Richardson, 34 N. H. 179 ; Black V. Black, 4 Bradf. Sur. Rep. 174, 205; Mead v. Larkin, 66 Ala. 87. Suc- cession, of Townsend, 36 La. Ann. 447. Where, however, a statute provides for the taking of a certain security, and au- GH. XI.J PEOTECTION BY " THE LAW OF THE LAND." 497 eases also partake of the nature both of proceedings in rem and of personal actions, since, although they proceed by seizing prop- erty, they also contemplate the service of process on defendant parties. Of this class are the proceedings by foreign attachment, in which the property of a non-resident or concealed debtor is seized and retained by the officer as security for the satisfaction of any judgment that may be recovered against him, but at the same time process is issued to be served upon the defendant, and which must be served, or some substitute for service had, before judgment can be rendered. In such cases, as well as in divorce suits, it will often happen that the party proceeded against cannot be found in the State, and personal service upon him is therefore impossible, unless it is allowable to make it wherever he may be found abroad. But any such service would be ineffectual. No State has authority to in- vade the jurisdiction of another, and by service of process compel parties there resident or being to submit their controversies to the determination of its courts ; and those courts will conseT-. quently be sometimes unable to enforce a jurisdiction which the State possesses in respect to the subjects within its limits, unless a substituted service is admissible. A substituted service is pro- vided by statute for many such cases ; generally in the form of a notice, published in the public journals, or posted, as the statute may direct ; the mode being chosen with a view to bring it home, if possible, to the knowledge of the party to be affected, and to give him an opportunity to appear and defend. The right of the legislature to prescribe such notice, and to give it effect as pro- cess, rests upon the necessity of the case, and has been long recognized and acted upon, 1 thorizes judgment to be rendered upon it defending, would be a Tiolation of the on motion, without process, the party constitution, and be Toid ; but where the' entering into the security must be under- legislature has presented a kind of notice stood to assent to the condition, and to by which it is reasonably probable that, waive process and consent to judgment, the party proceeded against will be ap- Lewis V. Garrett's Adm'r, 6 Miss. 484 ; prised of what is going on against him. People V. Van Bps, 4 Wend. 387 ; Chap- and an opportunity is afforded him to pee V. Thomas, 5 Mich. 63 ; Gildersleeve defend, I am of opinion that the courts w. People, 10 Barb. 35 ; People t). Lottj 21 have not the power to pronounce the, Barb. 130; Pratt ». Donovan, 10 Wis. proceeding illegal." Denio,3.,m Hatter 378; Murray v. Hoboken Land Co., 18 of Empire City Bank, 18 N. Y. 199, 215. How. 272; Philadelphia v. Common- See also, per J/orj^an, J., in Rockwell v. wealth, 52 Pa. St. 451 ; Whitehurst v. Nearing, 35 N. Y. 302, 314 ; Nations v. Coleen, 53 111. 247. Johnson, 24 How. 195 ; Beard v. Beard, 1 "It may be admitted that a statute 21 Ind. 821; Mason v. Messenger, 17 which should authorize any debt or dam- Iowa, 261 ; Cupp v. Commissioners of ages to be adjudged against a person upon Seneca Co., 19 Ohio St. 173; Campbell purely ex parte proceedings, without a v. Evans, 45 N. Y. 356 ; Happy v. Mosher, pretence of notice, or any provision for 48 N. Y. 813 ; Jqnes v. Driskell, 94 Mo. 32 498 CONSTITUTIONAL LIMITATIONS. [CH. XL But such notice ia restricted in its legal eifect, and cannot be made available for all purposes. It will enable the court to give effect to the proceeding so far as it is one in rem, but when the res is disposed of, the authority of the court ceases. The statute may give it effect so far as the subject-matter of the proceeding is within the limits, and therefore under the control, of the State ; but the notice cannot be made to stand in the place of process, so as to subject the defendant to a valid judgment against him per- sonally. In attachment proceedings, tlie published notice may be sufficient to enable the plaintiff to obtain a judgment which he can enforce by sale of the property attached, but for any other purpose such judgment would be ineffectual. The defendant could not be followed into another State or country, and there have recovery against him upon the judgment as an established demand. The fact that process was not personally served is a conclusive objection to the judgment as a personal claim, unless the defendant caused his appearance to be entered in the attach- ment proceedings.^ Where a party has property in a State, and 190 ; Palmer v. MoCormick, 28 Fed. Eep. 541 ; Traylor v. Lide, 7 S. W. Eep. 58 (Tex.). If an absent defendant retnms pending publication, he need not be per- sonally served. Dugh£ v. Voisin, 18 Abb. N. C. 358. Jurisdiction cannot be ac- quired by ordering goods of a non-resi- dent for the mere purpose of attaching them. Copas v. Anglo- Am. Prov. Co., 41 N. W. Eep. 690 (Mich.). In Burnham V. Commonwealth, 1 Dur. 210, a personal judgment against the absconding ofScers of the provisional government was sus- tained. But in the case of constructive notice, if the party appears, he has a right to be heard, and this cannot be denied him, even though he be a rebel. McVeigh V. United States, 11 Wall. 259, 267. 1 Pawling V. Willson, 13 Johns. 192 ; Heirs of Holman v. Bank of Norfolk, 12 Ala. 369 ; Curtis ». Gibbs, 1 Penn. 399 ; Miller's Ex'r v. Miller, 1 Bailey, 242; Cone V. Cotton, 2 Blackf . 82 ; Kilbnrn v. Woodworth, 5 Johns. 37 ; Robinson v. Ward's Ex'r, 8 Johns. 86 ; Hall v. Wil- liams, 6 Pick. 232 ; Bartlet v. Knight, 1 Mass. 401 i St. Albans v. Bush, 4 Vt. 58 ; Fenton v. Garlick, 6 Johns. 194 ; Bissell V. Briggs, 9 Mass. 462 ; s, c. 6 Am. Dec. 88 : Denison v. Hyde, 6 Conn. 508 ; Aid- rich 0. Kinney, 4 Conn. 380 ; s. c. 10 Am. Dec. 151 i Hoxie v. Wright, 2 Vt. 263 ; Prosser v. Warner, 47 Vt. 667 j b. c. 19 Am. Eep. 132; Newell v. Newton, 10 Pick. 470 ; Starbuck v. Murray, 5 Wend. 148 ; s. c. 21 Am. Dec. 172 ; Armstrong V. Harshaw, 1 Dev. 187 ; Bradshaw v. Heath, 13 Wend. 407 ; Bates v. Delavan, 5 Paige, 299; Webster w. Reid, 11 How. 437 ; Gleason ». Dodd, 4 Met. 833 ; Green V. Custard, 23 How. 484 ; Eliot v. McCor- mick, 144 Mass. 10. A personal judgment on such service when sued on is no basis for recovery. Needham v. Thayer, 147 Mass. 536 ; Eastman v. Dearborn, 63 N. H. 364. But see Everhart w.Holloway,55 Iowa, 179. A personal judgment cannot be based on service by publication or personal service out of the State. Denny v. Ashley, 20 Pac. Rep. 331 (Col.). Service by publi- cation may sufiSce for a decree of parti- tion of land, but not to create a personal demand for costs. Freeman v. Alderson, 119 U. S. 185. So if notice Is served in another State. Cloyd v. Trotter, 118 111. 391. A judgment in personam declaring bonds void does not bind a non-resident holder where the only notice was construc- tive by publication. Pana o. Bowler, 107 U. S. 529. In Ex parte Heyfron, 8 Miss. 127, it was held that an attorney could not be stricken from the rolls without notice of the proceeding, and opportunity to be heard. And see ante, p. 410, note. Leaving notice with one's family is not equivalent to personal service. Eape v. CH. XI.] PROTECTION BY " THE LAW OF THE LAND." 499 resides elsewhere, his property is justly subject to all valid claims that may exist against him there ; but beyond this, due process of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered. The same rule applies in divorce cases. The courts of the State where the complaining party resides have jurisdiction of the subject-matter ; and if the other party is a non-resident, they must be authorized to proceed without personal service of process. The publication which is permitted by the statute is sufficient to justify a decree in these cases changing the status of the com- plaining party, and thereby terminating the marriage ; ^ and it might be suflficient also to empower the court to pass upon the question of the custody and control of the children of the mar- riage, if they were then within its jurisdiction. But a decree on this subject could only be absolutely binding on the parties while the children remained within the jurisdiction ; if they acquire a domicile in another State or country, the judicial tribunals of that State or country would have authority to determine the question of their guardianship there.^ But in divorce cases, no more than ift any other, can the court make a decree for the payment of money by a defendant not served with process, and not appearing in the case, which shall be binding upon him personally. It must follow, in such a case, that the wife, when complainant, cannot obtain a valid decree for alimony, nor a valid judgment for costs. If the defendant had property within the State, it would be competent to provide by Heaton, 9 Wis. 829. At least after de- ^ This must be so on general prin- fendant has himself left the State. Ams- ciples, as the appointment of guardians bangh v. Exchange Bank, 33 Kan. 100. for minors is of local force only. See And see Bimeler v. Dawson, 5 III. 536. Morrell v. Dickey, 1 Johns. Ch. 153 ; 1 Hull V. Hull, 2 Strob. Eq. 174 ; Man- Woodworth v. Spring, 4 Allen, 321 ; Pot- ley ». Manley, 4 Chand. 97; Hubbel) b. ter v. Hisoox, 30 Conn. 508; Kraft v. Hubbell, 3 Wis. 662 ; Mansfield v. Mc- Wickey, 4 G. & J. 322 ; 8. c. 23 Am. Dec. Intyre, 10 Ohio, 28 ; Ditson v. Ditson, 4 569. In Kline i>. Kline, 57 Iowa, 386, an E. I. 87 ; Harrison v. Harrison, 19 Ala. order awarding custody of children was 499; Thompson o. State, 28 Ala. 12; held Inoperative when at the time the Harding v. Alden, 9 Me. 140; 8. c. 23 children were in another State; and in Am. Dec. 549; Maguire v. Maguire, 7 People v. Allen, 40 Hun, 611, an order Dana, 181 ; Hawkins v. Ragsdale, 80 Ky. made where all parties resided was held 353. It is immaterial in these cases binding in another State. The case of whether notice was actually brought Townsend v. Kendall, 4 Minn. 412, ap- home to the defendant or not. And see pears to be contra, but some reliance is Heirs of Holman v. Bank of Norfolk, 12 placed by the court on the statute of the Ala. 369. But see contra. People v. Baker, State which allows the foreign appoint- 76 N. Y. 78 ; O'Dea v. O'Dea, 101 N. Y. ment to be recognized for the purposes of 23; Magum v. Magum, U Ont. App. a sale of the real estate of a ward. X78; Flower v. Flower, 42 N. J. Bq. 152. 500 CONSTITUTIONAL LIMITATIONS. [CH. XL law for the seizure and appropriation of such property, under the decree of the court, to the use of the complainant ; but the legal tribunals elsewhere would not recognize a decree for alimony or for costs not based on personal service or appearance. The remedy of the complainant must generally, in these cases, be confined to a dissolution of the marriage, with the incidental benefits springing therefrom, and to an order for the custody of the children, if within the State.^ When the question is raised whether the proceedings of a court may not be void for want of jurisdiction, it will sometimes be important to note the grade of the court, and the extent of its authority. Some courts are of general jurisdiction, by which is meant that their authority extends to a great variety of matters ; while others are only of special and limited jurisdiction, by which it is understood that they have authority extending only to certain specified cases. The want of jurisdiction is equally fatal in the proceedings of each; but different rules prevail in showing it. It is not to be assumed that a court of general jurisdiction has in any case proceeded to adjudge upon matters over which it had no authority ; and its jurisdiction is to be presumed, whether there are recitals in its records to show it or not. On the other hand, no such intendment is made in favor of the judgment of a court of limited jurisdiction, but the recitals contained in the minutes of proceedings must be sufficient to show that the case was one which the law permitted the court to take cognizance of, and that the parties were subjected to its jurisdiction by proper process.^ 1 See Jackson v. Jackson, 1 Johns. ^ gee Dakin v. Hudson, 6 Cow. 221 ; 424; Harding v. Alden, 9 Me. 140; 8. c. Cleveland v. Rogers, 6 Wend. 438; Peo- 23 Am. Dec. 549 j Holmes v. Holmes, 4 pie v. Koeber, 7 Hill, 39 ; Shelden v. Barb. 295 ; Crane v. Meginnis, 1 Gill & J. Wright, 5 N. Y. 497 ; Clark v. Holmes, 1 463; Maguire w. Maguire, 7 Dana, 181; Doug. (Mich.) 390; Cooper v. Sunder- S. c. 19 Am. Dec. 237 ; Townsend v. land, 3 Iowa, 114 ; Wall v. Trumbull, 16 Griffin, 4 Harr. 440; Sowders v. Ed- Mich. 228; Denning w. Corwin, 11 Wend, munds, 76 Ind. 123. In Beard o. Beard, 647 ; Bridge v. Ford, 4 Mass. 641 ; Smith 21 Ind. 321, Perkins, J., after a learned v. Eice, 11 Mass. 607 ; Barrett v. Crane, and somewhat elaborate examination of 16 Vt. 246 ; Tift v. Griffin, 4 Ga. 185 ; the subject, expresses the opinion that the Jennings v. Stafford, 1 Ired. 404 ; Per- State may permit a personal judgment rine v. Farr, 22 N. J. 356 ; State v. Metz- for alimony in the case of a resident de- ger, 26 Mo. 65 ; Owen v. Jordan, 27 Ala. fendant, on service by publication only, 608 ; Hill o. Pride, 4 Call. 107 ; Sullivan though he conceded that there would be o. Blackwell, 28 Miss. 737. If without no such power in the case of non-resi- the aid of parol evidence a justice's judg- dents. Upon a C!alifornia divorce a wife ment is void, it cannot be aided by filing is not entitled to dower in Oregon lands, a transcript of it in a court of general which in such case is allowed in Oregon, jurisdiction. Barron v. Dent, 17 S. C, although the California court had juris- 75. If a court of general jurisdiction ex- diction. Barrett v. Failing, 111 U. S. ercises special powers in. a proceeding 628. not after the course of the common law. CH. XI.] PKOTECTION BY " THE LAW OF THE LAND." 501 There is also another difference between these two classes of tribunals in this, that the jurisdiction of the one may be disproved under circumstances where it would not be allowed in the case of the other. A record is not commonly suffered to be contradicted by parol evidence ; but wherever a fact showing want of jurisdic- tion in a court of general jurisdiction can be proved without con- tradicting its recitals, it is allowable to do so, and thus defeat its effect.^ But in the case of a court of special and limited author- ity, it is permitted to go still further, and to show a want of jurisdiction even in opposition to the recitals contained in the record.^ This we conceive to be the general rule, though there are apparent exceptions of those cases where the jurisdiction may be said to depend upon the existence of a certain state of facts, which must be passed upon by the courts themselves, and in respect to which the decision of the court once rendered, if there was any evidence whatever on which to base it, must be held final and conclusive in all collateral inquiries, notwithstanding it may have erred in its conclusions.* the essential jurisdictional facts must appear of record. Furgeson v. Jones, 20 Pac. Rep. 842 (Oreg.). 1 See this subject considered at some length in Wilcox v. Eassick, 2 Mich. 165. The record cannot be contradicted by parol. Littleton v. Smith, 119 Ind. 230 ; Turner v. Malone, 24 S. C. 398 j Boyd V. Eoane, 49 Ark. 397 ; Harris V. HcClanahan, 11 Lea, 181. General recitals may be contradicted by more specific ones in the same record. Cloud V. Pierce City, 86 Mo. 457. And see Adams v. Cowles, 95 Mo. 501 ; Rape u. Beaton, 9 Wis. 329 ; Bimeler v. Dawson, 6 lU. 536; Webster v. Reid, 11 How. 437. 2 Sheldon v. Wright, 5 N. Y. 497 ; Dyckman v. Mayor, &c. of N. Y., 5 N. Y. 434; Clark v. Holmes, 1 Doug. (Mich.) 390; Cooper v. Sunderland, 3 Iowa, 114; Sears v. Terry, 26 Conn. 273; Brown ». Foster, 6 R. I. 564 ; Fawcett v. Fowlis, 1 Man. & R. 102. But see Facey v. Fuller, IS.Mich. 527, where it was held that the entry in the docket of a justice that the parties appeared and proceeded to trial was conclusive. And see Selin v. Sny- der, 7 S. & R. 172. s Britain v. Kinnaird, 1 B. & B. 432. Conviction under the Bumboat Act. The record was fair on its face, but it was in- sisted that the vessel in question was not a " boat " within the intent of the act. Dallas, Ch. J. : " The general principle applicable to cases of this description is perfectly clear: it is established by all the ancient, and recognized by all the modern decisions; and the principle is^ that a conviction by a magistrate, who has jurisdiction over the subject-matter, is, if no defects appear, on the face of it, conclusive evidence of the facts stated in it. Such being the principle, what are the facts of the present case ? If the subject-matter in the present case were a boat, it is agreed that the boat would be forfeited; and the conviction stated it to be a boat. But it is said that in order to give the magistrate jurisdic- tien, the subject-matter of his conviction must be a boat ; and tliat it is competent to the party to impeach the conviction by showing that this was not a boat. I agree, that if he had not jurisdiction, the conviction signifies nothing. Had he then jurisdiction in this case ? By the act of Parliament he is empowered to search for and seize gunpowder in any boat on the river Thames. Now, allow- ing, for the sake of argument, that ' boat' is a word of technical meaning, and some- what different from a vessel, still, it was a matter of fact to be made out before the magistrate, and on which he was to draw his own conclusion. But it is said that a jurisdiction limited as to person, 502 CONSTITUTIONAL LIMITATIONS. [CH. XL When it is once made to appear that a court has jurisdiction both of the subject-matter and of the parties, the judgment which it pronounces must be held conclusive and binding upon the parties thereto and their privies, notwithstanding the court may have proceeded irregularly, or erred in its application of the law place, and subject-matter is stinted in its nature, and cannot be lawfully exceeded. I agree : but upon the inquiry before the magistrate, does not the person form a question to be decided by .evidence 1 Does not the place, does not the subject- matter, form such a question t The pos- session of a boat, therefore, with gun- powder on board, is part of the offence charged ; and how could the magistrate decide but by examining evidence in proof of what was alleged t The magis- trate, it is urged, could not give himself jurisdiction by finding that to be a fact which did not existi But he is bound to inquire as to the fact, and when he has inquired, his conviction is conclusive of it. The magistrates have inquired in the present instance, and they find the sub- ject of conviction to be a boat. Much has been said about the danger of magis- trates giving themselves jurisdiction ; and extreme cases have been put, as of a magistrate seizing a ship of seventy- four guns, and calling it a boat. Sup- pose such a thing done, the conviction is still conclusive, and we cannot look out of it. It is urged that the party is vrith- out remedy ; and so he is, without civil remedy, in this and many other cases ; his remedy is by proceeding criminally ; and if the decision were so gross as to call a ship of seventy-four guns a boat, it would be good ground for a criminal proceeding. Formerly the rule was to intend everything against a stinted juris- diction: that is not the rule now; and nothing is to be intended but what is fair and reasonable, and it is reasonable to intend that magistrates will do what is right." Richardson, J., in the same case, states the real point very clearly: " Whether the vessel in question were a boat or no was a fact on which the ma- gistrate was to decide; an^ the fallacy lies in assuming that the fact which the magistrate has to decide is that which constitutes his jurisdiction. If a fact decided as this has been might be ques- tioned in a civil suit, the magistrate would never be safe in his jurisdiction. Suppose the case for a conviction under the game laws of having partridges in possession; could the magistrate, in an action of trespass, be called on to show that the bird in question was really a partridge t and yet it might as well be urged, in that case, that the magistrate had no jurisdiction unless the bird were a partridge, as it may be urged in the pres- ent case that he has none unless the ma- chine be a boat. So in the case of a conviction for keeping dogs for the de- struction of game without being duly qualified to do so ; after the conviction had found that the offender kept a dog of that description, could he, in a civil ac- tion, be allowed to dispute the truth of the conviction? In a question like the present we are not to look to the incon- venience, but at the law; but surely if the magistrate acts bona fide, and comes to his conclusion as to matters of fact according to the best of his judgment, it would be highly unjust if he were to have to defend himself in a civil action ; and the more so, as he might have been com- pelled by a mandamus to proceed on the investigation. Upon the general prin- ciple, therefore, that where the magis- trate has jurisdiction his conviction is conclusive evidence of the facts stated in it, I think this rule must be discharged." See also Hasten v. Carew, 3 B. & C. 648 ; Fawcett v. Fowlis, 7 B. & C. 394 ; Ash- croft V. Bourne, 3 B. & Ad. 684 ; Mather a. Hodd, 8 Johns. 44 ; Mackaboy v. Com- monwealth, 2 Virg. Cas. 270 ; Ex parte Kellogg, 6 Vt. 509; State v. Scott, 1 Bailey, 294; Facey v. Fuller, 13 Mich. 527; Wall v. Trumbull, 16 Mich. 228; Sheldon ». Wright, 5 N. Y. 497 ; Wanzer V. Rowland, 10 Wis. 16; Ricketts v. Spraker, 77 Ind. 371 ; Fanning v. Krapfl, 68 Iowa, 244 ; Schee v. La Grange, 42 N. W. Rep. 616 (Iowa) ; Sims v. Gay, 109 Ind. 501 ; Epping v. Robinson, 21 Fla. 36 ; Freeman on Judgments, § 523, and cases cited. CH. XI.] PROTECTIOK BY " THE LAW OF THE LAND." 503 to the case before it. It is a general rule that irregularities in the course of judicial proceedings do not render them void.^ An irregularity may be defined as the failure to observe that par- ticular course of proceeding which, conformably with the practice of the court, ought to have been observed in the case ;2 and if a party claims to be aggrieved by this, he must apply to the court in which the suit is pending to set aside the proceedings, or to give him such other redress as he thinks himself entitled to ; or he must take steps to have the judgment reversed by removing the case for review to an appellate court, if any such there be. Wherever the question of the validity of the proceedings arises in any collateral suit, he will be held bound by them to the same extent as if in all respects the court had proceeded according to law. An irregularity cannot be taken advantage of collaterally ; that is to say, in any other suit than that in which the irregular- ity occurs, or on appeal or process in error therefrom. And even in the same proceeding an irregularity may be waived, and will commonly be held to be waived if the party entitled to complain of it shall take any subsequent step in the case inconsistent with an intent on his part to take advantage of it.^ We have thus briefly indicated the cases in which judicial action may be treated as void because not in accordance with the law of the land. The design of the present work does not per- mit an enlarged discussion of the topics which suggest themselves in this connection, and which, however interesting and important, do not specially pertain to the subject of constitutional law. 1 Ex parte Kellogg, 6 Vt. 509 ; Edger- ^ •< xhe doing or not doing that in the ton V. Hart, 8 Vt. 208 ; Carter v. Walker, conduct of a suit at law, which, conform- 2 Ohio St. 339 ; White ». Crow, 110 U. S. ably to the practice of the court, ought 183 ; Fox V. Cottage, &c. Ass., 81 Va. 677 ; or ought not to be done." Bouv. Law. King V. Burdett, 28 W. "Va. 601 ; Levan ». Die. See Dick v. MoLaurin, 63 N. C. 185. MillhoUand, 114 Pa. St. 49 ; Weiss v. » Robinson v. West, 1 Sandf. 19 ; Ma- Guerineau, 109 Ind. 438 ; Rosenheim v. . lone ». Clark, 2 Hill, 657 ; Wood v. Ran- Hartsock, 90 Mo. 357 ; Head v. Daniels, dall, 5 Hill, 264; Baker v. Kerr, 13 Iowa, 38 Kan. 1 ; Spillman ». Williams, 91 N. C. 384; Loomis v. Wadhams, 8 Gray, 557 ; 483; Freeman on Judgments, § 135. See Warren v. Glynn, 37 N. H. 340. A Matthews v. Densmore, 109 U. S. 216; strong instance of waiver is where, on Bonney v. Bowman, 63 Miss. 166. Com- appeal from a court having no jurisdic- pare Seamster v. Blackstock, 83 Ya. 232. tion of the subject-matter to a court har- Even if a court, after acquiring juris- ing general jurisdiction, the parties going diction, were to render judgment without to trial without objection are held bound trial or an opportunity for hearing, the by the judgment. Randolph Co. v. Ralls, judgment would not be void, but only 18 III. 29; Wells v. Scott, 4 Mich, erroneous. Clark v. County Court, 55 347 j Tower v. Lamb, 6 Mich. 862. If an Gal. 199. objection to proceeding with a jury of A judge cannot perform any judicial less than twelve is overruled, it is not act when he is beyond the limits of his waived by moving for judgment on the State ; not even the granting of a certio- findings of such jury. Bshelman v. rari. Buchanan v. Jones, 12 Ga. 612. Chicago, &c. Ry. Co., 67 Iowa, 296. S04 CONSTITUTIONAI, LIMITATIONS. [CH. XI. But a party in any case has a right to demand that the judg^ ment of the court be given upon his suit, and he cannot be bound by a delegated exercise of judicial power, whether the delegation be by the courts or by legislative act devolving judicial duties on ministerial ofi&cers.^ Proceedings in any such case would be void ; but they must be carefully distinguished from those cases in which the court has itself acted, though irregularly. All the State constitutions preserve the right of trial by jury, for civil as well as for criminal cases, with such exceptions as are specifiedj and which for the most part consist in such cases as are of small consequence, and are triable in inferior courts. The constitu- tional provisions do not extend the right ; they only secure it in the cases in which it was a matter of right before.^ But in doing computation. Aldrich v. Sharp, 4 III. 261 ; Smith a. Trimble, 27 III. 152. For the general principle that judicial power cannot be delegated, see further, Gough v. Dorsey, 27 Wis. 119 ; Milwaukee Indus- trial School V. Superrisors, 40 Wis. 328 ; AUor V. County Auditors, 43 Mich. 76; Ward u. Farwell, 97 111. 598. A justice having power to issue writs. as the com- mencement of suit, cannot issue them in blank to be filled up by parties or by ministerial officers. Pierce v. Hubbard, 10 Johns. 405; Craighead u. Martin, 25 Minn. 41. But a writ will not necessarily be quashed because filled up by an un- authorized person. Einne v. Hinman, 58 N. H. 363. The clerk of a court of rec- ord may be authorized to enter up judg- ment in vacation against a defendant whose indebtedness is admitted of record : Lathrop v. Snyder, 17 Wis. 110 ; but not in other cases. See Grattan v. Matteson, 54 Iowa, 229 ; Keith v. Kellogg, 97 111. 147. Such an entry not authorized or approved by the court is void. Balm v. Nunn, 63 la. 641 ; Mitchell v. St. John, 98 Ind. 598. For the distinction betweefl judicial and ministerial action, see Flour- noy V. JefEersonville, 17 Ind. 169; People 0. Bennett, 29 Mich. 451. 2 Backus u. Lebanon, 11 N. H. 19; Opinions of Judges, 41 N. H. 550 ; Dane Co. V. Dunning, 20 Wis. 210 ; Stilwell o. Kellogg, 14 Wis. 461 ; Mead o. Walker, 17 Wis. 189 ; Commissioners v. Seabrook, 2 Strob. 560; Tabor v. Cook, 15 Mich. 322 ; Lake Erie, Ac. R. R. Co. v. Heath, 9 Ind. 558 ; Byers v. Commonwealth, 42 Pa. St. 89; State v. Peterson, 41 Vt. 504 ; In re Hackett, 53 Vt. 354 ; Buffalo, 1 Hall I). Marks, 34 III. 358 ; Chandler 9. Nash, 6 Mich. 409. It is not competent to provide by statute that the judge may call a member of the bar to sit in his place in a special case. " The legisla- ture has no power to authorize a district judge to place his judicial robe upon the shoulders of any man." Winchester v. Ayres, 4 Greene (Iowa), 104. See Wright I). Boon, 2 Greene (Iowa), 458; Michales v. Hine, 3 Greene (Iowa), 470 ; Smith V. Frisbie, 7 Iowa, 486. To allow it would be to provide a mode for choosing judges different from that pre- scribed by the Constitution. State v. PhUlips, 27 La. Ann. 663; State v. Fritz 27 La. Ann. 689. Even the consent of parties would not give the judge this authority. Hoagland p. Creed, 81 111. 506; Andrews v. Beck, 23 Tex. 455; Haverly I. M. Co. v. Howoutt, 6 Col. 674. In Missouri there is statutory pro- vision for a special judge. State v. Hos- mer, 85 Mo. 653. Under the Tennessee statute a special judge can act only in civil cases. Neil v. State, 2 Lea, 674. It is competent to send a case to referees or to a master for investigation of ac- counts. Underwood o. McDuffee, 15 Mich. 361 ; Hard u. Burton, 79 111. 604. All the issues in a case involving accounts may be referred. Huston v. Wadsworth, 6 Col. 218. But it is not competent to give the referee powers of final decision. Johnson v. Wallace, 7 Ohio, 342; King v. Hopkins, 57 N. H. 334; St. Paul, &c. R. R. Co. ». Gardner, 19 Minn. 132; s. o. 18 Am. Eep. 334. A decree for the payment of money must specify the precise amount to be paid, and not leave it to subsequent CH. XI.] PEOTECTION BY " THE LAW OF THE LAND." 505 this, they preserve the historical jury of twelve men,^ with all its incidents, unless a contrary purpose clearly appears. The party is therefore entitled to examine into the qualifications and im- partiality of jurors ; ^ and to have the proceedings public ; ^ and no conditions can be imposed upon the exercise of the right that shall impair its value and usefulness.* It has been held, however, in many cases, that it is competent to deny to parties the privi- lege of a trial in a court of first instance, provided the right is allowed on appeal.^ It is undoubtedly competent to create new &c. R. R. Co. V. Ferris, 26 Tex. 588; Sands v. Kimbark, 27 N. Y. 147; Howell II. Fry, 19 Ohio St. 556 ; Guile v. Brown, 88 Conn. 237; Howe v. Plainfield, 37 N. J. 145 ; Commissioners v. Morrison, 22 Minn. 178. These provisions do not apply to equitable causes or proceedings : Flaherty v. McCormick, 113 111. 538; State V. Churchill, 48 Ark. 426; Malian v. Cavender, 77 Ga. 118 ; In re Burrows, 33 Kan. 675; Eikenberry v. Edwards, 67 Iowa, 619; McKinsey v. Squires, 9 S. E. Bep. 55 (W. Va.) ; not even to enjoining and abating a building as a liquor nuisance : Carleton v. Rugg, 149 Mass. 550 ; nor to special statutory drainage pro- ceedings : Lipes v. Hand, 104 Ind. 603 ; nor to proceedings to determine lunacy : County of Black Hawk v. Springer, 68 Iowa, 417 ; Crocker v. State, 60 Wis. 653 ; nor to summary landlord and tenant pro- ceedings: Frazee v. Beattie, 26 S. C. 348; nor to a hearing as to damages on default in tort : Seeley v. Bridgeport, 53 Conn. 1 ; nor to insolvency proceedings. Weston v. Loyhed, 80 Minn. 221 ; contra, Risser v. Hoyt, 53 Mich. 185. Nor do they pre- vent a court from denying a new trial unless plaintiff remits a part of the ver- dict. Arkansas "V. L. &c. Co. v, Mann, 130 U. S. 69. Nor summary distress for rent if a iury may be had by replevying property seized. Blanchard v. Raines, 20 Fla. 467. They do prevent making the findings of appraisers conclusive evidence of value, ownership, and injury, where stock is killed by a railroad. Graves v. Nor. Pac. R. R. Co., 5 Mont. 556. That notwithstanding jury trial is preserved, the jurisdiction of justices to try petty cases without jury may be •.extended, see Beers v. Beers, 4 Conn. 535; s. c. 10 Am. Deo. 186; Keddie v. Moore, 2 Murph. 41 ; 8. o. 5 Am. Dec. 618. ^ See ante, p. 389. And see the gen- eral examination of the subject histori- cally in Hagany ». Cohnen, 29 Ohio St. 82 ; and Copp v. Henniker, 56 N. H. 179. A statute allowing less than twelve to sit if a juror is sick is bad. Eshelman v. Chi- cago, &o. Ry. Co., 67 Iowa, 296. But a jury of six may be allowed in inferior courts. Higgins V. Farmers' Ins. Co., 60 Iowa, 50. One of less than twelve may act in stat- utory highway proceedings. McManus V. McDonough, 107 111. 96. 2 Palmore v. State, 29 Ark. 249 ; Paul V. Detroit, 32 Mich. 108. ' Watertown Bank &c. v. Mix, 51 N. y. 658. * Greene ». Briggs, 1 Curt. C. C. 311 ; Lincoln v. Smith, 27 Vt. 328; Norris- town, &c. Co. V. Burket, 26 Ind. 53; State V. Gurney, 37 Me. 156 ; Copp v. Henni- ker, 66 N. H. 179. It is not inadmissible, however, to require of a party demanding a jury that he shall pay the jury fee. Randall v. Keillor, 60 Me. 37 ; Conners v. Burlington &c. Ry. Co., 74 Iowa, 383 j Conneau v. Geis, 73 Cal. 176. ° Emerick v. Harris, 1 Binn. 416; Biddle v. Commonwealth, 13 S. & R. 405 ; l^cDonald v. ScheU, 6 S. & R. 240 ; Ked- die V. Moore, 2 Murph. 41 ; Wilson v. Simonton, 1 Hawks, 482; Monford v. Barney, 8 Yerg. 444 ; Beers v. Beers, 4 Conn. 535; B. c. 10 Am. Dec. 186; State ». Brennan's Liquors, 25 Conn. 278; Cur- tis V. Gill, 34 Conn. 49 ; Reckner v. War- ner, 22 Ohio St. 276; Jones v. Robbins, 8 Gray, 329 ; Hapgood v. Doherty, 8 Gray, 373; Flint River, &o. Co. v. Foster, 6 Ga. 194; State v. Beneke, 9 Iowa, 203; Lin- coln V. Smith, 27 Vt. 328, 360 ; Steuart v. Baltimore, 7 Md. 500; Commonwealth V. Whitney, 108 Mass. 5 ; Maxwell v. Com'rs Fulton Co., 119 Ind. 20; Hel- verstine ». Yantes, 11 S. W. Rep. 811 (Ky.) ; Beasley v. Beckley, 28 W. Va. 506 CONSTITUTIONAL LIMITATIONS. [CH. XI. tribunals without common-law powers, and to authorize them to proceed without a jury ; but a change in the forms of action will not authorize submitting common-lanr rights to a tribunal in which no jury is allowed.^ In any case, we suppose a failure to award a jury on proper demand would be an irregularity merely, render- ing the proceedings liable to reversal, but not making them void. There is also a maxim of law regarding judicial action which may have an important bearing upon the constitutional validity of judgments in some cases. No one ought to be a judge in his own cause ; and so inflexible and so manifestly just is this rule, that Lord Ooke has laid it down that " even an act of Parliament made against natural equity, as to make a man a judge in his own case, is void in itself ; for jura naturae sunt immutabilia, and they are leges legum." ^ This maxim applies in all cases where judicial functions are to be exercised, and excludes all who are interested, however re- motely, from taking part in their exercise. It is not left to the discretion of a judge, or to his sense of decency, to decide whether he shall act or not; all his powers are subject to this absolute limitation ; and when his own rights are in question, he has no authority to determine the cause.^ Nor is it essential that the 81 ; State ti. Fitzpatrick, 11 Atl. Rep. 773 (B. I.). But the recognizance to the lower court on appeal must not be bur- dened with unreasonable conditions. Liquors of McSorley, 15 E. I. 608. Compare /» re Marron, 60 Vt. 199.' But that this could not be admissible in criminal cases was held in Matter of Dana, 7 Benedict, 1, by Judge Blatchford, who very sensibly remarks, " In my judg- ment the accused is entitled, not to be first convicted by a court, and then to be acquitted by a jury, but to be convicted or acquitted in the first instance by a jury." On a charge of criminal conspiracy, a prisoner has a right to jury trial, " from the first moment and in whatever court he is put on trial for the offence charged." Callan v. Wilson, 127 U. S. 540. If in a lower court one has had a jury trial and appeals to a higher nisi prius court, he cannot be deprived of a jury there. Mc- Ginty v. Carter, 48 N. J. L. 118. That the right to jury trial in civil cases may be waived by failure to demand it, see Glea- son w. Keteltas, 17 N. Y. 491; Baird v. Mayor, 74 N. Y. 382 ; Garrison v. Hollins, 2 Lea, 684 ; Foster v. Morse, 132 Mass. ■854. ■ That it is competent to provide that the failure to file an affidavit of defence shall entitle the plaintiff to judgment, see Hoffman v. Locke, 19 Pa. St. 57 ; Law- rance o. Born, 86 Pa. St.. 225 ; Dortio v. Lockwood, 61 Ga. 293. 1 See Rhines o. Clark, 51 Pa. St. 96. Compare Haines v. Levin, 51 Pa. St. 412; Haine's Appeal, 73 Pa. St. 169. Whether jury trial is of right in quo war- ranto cases, see State v. Allen, 5 Kan. 213; State V. Johnson, 26 Ark. 281 ; William- son V. Lane, 52 Tex. 335 ; State v. Vail, 58 Mo. 97; State v. Lupton, 64 Mo. 415; s. o. 27 Am. Rep. 253 ; People v. Cieott, 16 Mich. 283 ; People v. Railroad Co., 57 N. Y. 161 ; Royal v. Thomas, 28 Gratt. 1.30 ; 8. c. 26 Am. Rep. 335 ; and cases, p. 786, note 2, post. 2 Co. Lit. § 212. See Day v. Savadge, Hobart, 85. We should not venture to predict, however, that even in a ease of this kind, if one could be imagined to ex- ist, the courts would declare the act of Parliament void; though they would never find such an intent in the statute, if any other could possibly be made consist- ent with the words. 8 Washington Ins. Co. v. Price, Hopk. Ch. 2 ; Sigourney v. Sibley, 21 Pick. 101 ; CH. XI.j PROTECTION BY " THE LAW OF THE LAND." 507 judge be a party named in the record ; if the suit is brought or defended in his interest, or if he is a corporator in a corporation which is a party, or which will be benefited or damnified by the judgment, he is equally excluded as if he were the party named.^ Accordingly, where the Lord Chancellor, who was a shareholder in a company in whose favor the Vice-Chancellor had rendered a decree, afiirmed this decree, the House of Lords reversed the de cree on this ground, Lord Campbell observing : " It is of the last importance that the maxim that ' no man is to be a judge in his own cause' should be held sacred. And that is not to be con- fined to a cause in which he is a party, but applies to a cause in which he has an interest." " We have again and again set aside proceedings in inferior tribunals, because an individual who had an interest in a cause took a part in the decision. And it will have a most salutary effect on these tribunals, when it is known that this high court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care, not only that in their decrees they are not influenced by their per- sonal interest, but to avoid the appearance of laboring under such an influence." ^ It is matter of some interest to know whether the legislatures of the American States can set aside this maxim of the common law, and by express enactment permit one to act judicially when interested in the controversy. The maxim itself, it is said, in some cases, does not apply where, from necessity, the judge must proceed in the case, there being no other tribunal authorized to act ; ^ but we prefer the opinion of Chancellor Sandford of New Freeman on Judgments, § 144. A judge v. White Lake, 22 Mich. 341 ; Petition of of probate cannot act upon an estate of. New Boston, 49 N. H. 328. If the prop- which he is executor : Bedell v. Bailey, erty of a judge from its situation will be 58 N. H. 62 ; or creditor, Burks v. Ben- affected like complainant's by his ruling nett, 62 Tex. 277. Compare Matter of he cannot sit. North Bloomfield G. M. Hancock, 91 N. Y. 284. A justice may Co. v. Keyser, 58 Cal. 315. As to disquali- sit, although he has received for collee- fioation by relationship, see Russell v. tion the note in suit. Moon u. Stevens, Belcher, 76 Me. 501 ; Patterson v. Collier, 53 Mich. 144. 75 Ga. 419 ; Jordan v. Moore, 65 Tex. 1 Washington Ins. Co. v. Price, Hopk. 363 ; Hume u. Commercial Bank, 10 Ch. 1 ; Dimes v. Proprietors of Grand Lea, 1. Junction Canal, 3 House of Lords Cases, ^ Dimes v. Proprietors of Grand Junc- 759 ; Pearce v. Atwood, 13 Mass. 324 ; tion Canal, 3 House of Lords Cases, 759, Kentish Artillery i-. Gardiner, 15 R. 1. 296 ; 793. Peck V. Freeholders of Essex, 20 N. J. » Ranger v. Great Western R., 5 House 457 ; Commonwealth v. McLane, 4 Gray, of Lords Cases, 72, 88 ; Stuart v. Mechan- 427 ; Dively «. Cedar Falls, 21 Iowa, 565 ; ics' & Farmers' Bank, 19 Johns. 496. Clark W.Lamb, 2 Allen, 896; Stockwell 508 CONSTITUTIONAL LIMITATIONS. [CH. XLi York, that in such a case it belongs to the power which created' such a court to provide anotlier in which this judge may be a party ; and whether another tribunal is established or not, he at least is not entrusted with authority to determine his own rights, or his own wrongs.^ It has been held that where the interest was that of corporator in a municipal corporation, the legislature might provide that it should constitute no disqualification where the corporation was a party.- But the ground of this ruling appears to be, that the interest is so remote, trifling, and insignificant, that it may fairly be supposed to be incapable of affecting the judgment or of in- fluencing the conduct of an individual.* And where penalties are imposed, to be recovered only in a municipal court, the judges or jurors in which would be interested as corporators in the re- covery, the law providing for such recovery must hie regarded as precluding the objection of interest.^ And it is very common, in a certain class of cases, for the law to provide that certain town- ship and county officers shall audit their own accounts for ser- vices rendered the public ; but in such case there is no adversary party, unless the State, which passes the law, or the municipali- ties, which are its component parts and subject to its control, can be regarded as such. But except in cases resting upon such reasons, we do not see how the legislature can have any power to abolish a maxim which is among the fundamentals of judicial authority. The people of the State, when framing their constitution, may possibly establish so great an anomaly, if they see fit ; * but if the legislature is en- trusted with apportioning and providing for the exercise of the judicial power, we cannot understand it to be authorized, in the execution of this trust, to do that which has never been recog- nized as being within the province of the judicial authority. To empower one party to a controversy to decide it for himself is not 1 Washington Insurance Co. w. Price, 4 Sou. Rep. 525 (Fla.), case of changing Hopk. Ch. 1. This subject was consid- county seat. ered in Hall v. Thayer, 105 Mass. 219, and ' Commonwealth v. Ryan, 5 Mass. 90; an appointment by a judge of probate of Hill v. Wells, 6 Pick. 104; Commonwealth his wife's brother as administrator of an v. Emery, 11 Cush. 406 ; State i>. Craig, estate of which her father was a princi- 80 Me. 86 ; In re Guerrero, 69 Cal. 88. pal creditor was held void. And see * Matter of Leefe, 2 Barb. Ch. 39. People V. Gies, 26 Mich. 83. Even this must be deemed doubtful since * Commonwealth ». Reed, 1 Gray, 476; the adoption of the fourteenth article of Justices V. Fennimore, 1 N. J. 190 ; Com- the amendments to the federal Constitu- missioners v. Little, 3 Ohio, 289 ; Min- tion, which denies to the State the right neapolis o. Wilkin, 80 Minn. 140. See to deprive one of life, liberty, or property, Foreman b. Marianna, 48 Ark. 324, case without due process of law. of annexing territory ; Sauls v. Freeman, CH. XI.] PKOTEOTION BX " THE EAW OF THE LAND." 509 within the legislative authority, because it is not the establishment of any rule of action or decision, but is a placing of the other party, so far as that controversy is concerned, out of the protec- tion of the law, and submitting him to the control of one whose interest it will be to decide arbitrarily and unjustly .^ Nor do we see how the objection of interest can be waived by the other party. If not taken before the decision is rendered, it will avail in an appellate court ; and the suit may there be dis- missed on that ground.2 The judge acting in such a case is not simply proceeding irregularly, but he is acting without jurisdic- tion. And if one of the judges constituting a court is disquali- fied on this ground, the judgment will be void, even though the proper number may have concurred in the result, not reckoning the interested party .^ Mere formal acts necessary to enable the case to be brought before a proper tribunal for adjudication, an interested judge may do ; * but that is the extent of his power. 1 See Ames v. Fort Huron Log-Driv- in the case should be quashed. It was Ing and Booming Co., 11 Mich. 189 ; Hall also decided that it was no answer to the V. Thayer, 106 Mass. 219 ; State v. Crane, objection that there was a majority in 36 N. J. 394 ; Cypress Pond Draining Co. favor of the decision without reckoning V. Hooper, 2 Met. (Ky.) 350; Scuffletown the interested party, nor that the inter- Fence Co. V. McAllister, 12 Bush, 312 ; ested party withdrew before the decision. Reams v. Kearns, 6 Cold. 217. So power if he appeared to have joined in discuss- to make a municipal corporation party ing the matter with the other magis- and judge in the same controversy can trates. See also The Queen v. Justices constitutionally be given. Lanfear v. of Suffolk, 18 Q. B. 416 ; The Queen v. Mayor, 4 La. 97 ; b. c. 23 Am. Dec. 477. Justices of London, 18 Q. B. 421 ; Pe- 2 Richardson v. Welcome, 6 Cush. 332 ; ninsula R. R. Co. v. Howard, 20 Mich. Dimes v. Proprietors of Grand Junction 18. Canal, 3 H. L. Cas. 759. And see Sigour- * Richardson v. Boston, 1 Curtis, C. C. ney ». Sibley, 21 Pick. 101; Oakley v. 250; Washington Insurance Co. ». Price, Aspinwall, 8 N. T. 547. But it is held in Hopk. Ch. 1 ; Buckingham v. Davis, 9 Pettigrew v. Washington Co., 48 Ark. 33, Md. 324 ; Heydenfeldt v. Towns, 27 Ala. that after judgment it is too late to ob- 423 ; State v. Judge, 37 La. Ann. 258. ject that relationship to a party disquali- If the judge who renders judgment in a fied a judge. cause had previously been attorney in 8 In Queen v. Justices of Hertford- it, the judgment is a nullity. Reams ». shire, 6 Q. B. 758, it was decided that, if Kearns, 5 Cold. 217 ; Slaven v. Wheeler, 58 any one of the magistrates hearing a case Tex. 23. So though the case in suit is at sessions was interested, the court was not precisely the one in which he has been Improperly constituted, and an order made consulted. Newcome v. Light, 58 Tex. 141. 610 CONSTITUTIONAL LIMITATIONS. [CH. xn. CHAPTER XII. LIBERTY OP SPEECH AND OP THE PRESS. The first amendment to the Constitution of the United States provides, among other things, that Congress shall make no law abridging the freedom of speech or of the press. The privilege which is thus protected against unfriendly legislation by Con- gress, is almost universally regarded not only as highly impor- tant, but as being essential to the very existence and perpetuity of free government. The people of the States have therefore guarded it with jealous care, by provisions of similar import in their, several constitutions, and a constitutional principle is there- by established which is supposed to form a shield of protection to the free expression of opinion in every part of our land.^ ^ The following are tlie constitutional provisions : Maine : Every citizen may freely speak, write, and publish his senti- ments on any subject, being responsible for the abuse of this liberty. No law shall be passed regulating or restraining the freedom of the press ; and, in pfose- cutions for any publication respecting the ofiScial conduct of men in public capacity, or the quahflcations of those who are candidates for the suffrages of the people, or where the matter published is proper for public information, the truth thereof may be given in evidence ; and in all in- dictments for libel, the jury, after having received the direction of the court, shall have a right to determine, at their dis- cretion, the law and the fact. Declara- tion of Rights, § 4.— iV«!0 Hampshire : The liberty of the press is essential to the security of freedom in a State j it ought, therefore, to be inviolably preserved. Bill of Rights, § 22. — Vermont: That the peo- ple have a right to freedom of speech, and of writing and publishing their sen- timents concerning the transactions of government ; therefore the freedom of the press ought not to be restrained. Decla- ration of Rights, Art, 13. — Massachusetts : The liberty of the press is essential to the security of freedom in a State ; it ought not, therefore, to be restrained in this Commonwealth. Declaration of Rights, Art. Id. — E/iode Island: The lib- erty of the press being essential to the security of freedom in a State, any per- son may publish his sentiments on any subject, being responsible for the abuse of that liberty ; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be su£Scient defence to the person charged. Art. 1, § 20. — Connecticut: No law shall ever be passed to curtail or restrain the liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence, and the jury shall have the right to determine the law and the facts, under the direction of the court. Art. 1, §§ 6 and 7. — Nm York: Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right ; and no law sliall be passed to restrain or abridge the liberty of speech or the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libellous is true, and was pub- CH. Xn.] LIBERTY OF SPEECH AKD OF THE PRESS. 511 It is to be observed of these several provisions, that they recog- nize certain rights as now existing, and seek to protect and per- lished with good motiTes and for justifia- ble ends, the party shall be acquitted, and the jury shall have the right to determine the law and the fact. Art. 1, § 8. — New Jersey: Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury ; and if it shall appear to the jury that the matter charged as libellous is true, and was pub- lished with good motives and for justifia- ble ends, the party shall be acquitted ; and the jury shall have the right to de- termine the law and the fact. Art. 1, §5. — Pennsylvania: That the printing- press shall be free to every person who -may undertake to examine the proceed- ings of the legislature, or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts aiid opin- ions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being re- sponsible for the abuse of that liberty. No conviction shall be had in any prose- cution for the publication of papers, re- lating to the oflScial conduct of ofiacers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negli- gently made shall be established to the satisfaction of the jury ; and in all in- dictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases. Art. 1, § 7. — Delaware : The press shall be free to every citizen who undertakes to examine the official conduct of men acting in public capacity, and any citizen may print on any such subject, being responsible for the abuse of that liberty. In prosecutions for pub- lications investigating the proceedings of officers, or where the matter published is proper for public information, the truth thereof may be given in evidence ; and in all indictments for libels, the jury may determine the facts and the law, as in other cases. Art. 1, § 6. — Maryland: That the liberty of the press ought to be inviolably preserved ; that every citizen of the State ought to be allowed to speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that privilege. Declaration of Rights, Art. 40. — West Virginia : No law abridg- ing the freedom of speech or of the press shall be passed ; but the legislature may provide for the restraint and punishment of the publishing and vending of obscene books, papers, and pictures, and of libel and defamation of character, and for the recovery in civil action by the aggrieved party of suitable damages for such libel or defamation. Attempts to justify and uphold an armed invasion of tlie State, or an organized insurrection therein during the continuance of such invasion or in- surrection,- by publicly speaking, writing, or printing, or by puhlishing, or circulat- ing such writing or printing, may be by law declared a misdemeanor, and pun- ished accordingly. In prosecutions and civil suits for libel, the truth may he given in evidence ; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives, and for justifiable ends, the verdict shall be for the defendant. Art. 2, §§ 4 and 5. — Kentucky ; That printing- presses shall be free to every person who undertakes to examine the proceedings of the General Assembly, or any branch of the government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and ot>inions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. In all prosecutions for the publi- cation of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence j and in all indictments for libels, the jury shall have' a right to determine the law and the facts, under the direction of the court, as in other cases. Art. 13, §§ 9 and 10. — Tennessee: Nearly the same as Pennsylvania. Art 1, § 19. — Ohio: 512 CONSTITUTIONAL LIMITATIONS. [CH. XII,, petuate them, by declaring that they shall not be abridged, or that they shall remain inviolate. They do not assume to create. Every citizen may freely spealc, write, and publisli his sentiments on all subjects, being responsible for the abuse of tlie right ; and no law shall be passed to re- strain or abridge liberty of speech or of the press. In all criminal prosecutions for libel, the truth may be given in evi- dence to the jury ; and if it shall appear to the jury that the matter charged as li- bellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted. Art 1, § 11. — Iowa, Art. 1, § 7, and Nevada, Art. 1, § 9. Substantially same as Ohio. — Illinois: Every person may freely speak, write, and pubhsh on all subjects, being respon sible for the abuse of that liberty ; and in all trials for libel, both civil and criminal, the truth, when published with good mo- tives and for justifiable ends, shall be a sufficient defence. Art. 2, § 4. — Indiana : No law shall be passed restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print freely on any subject whatever ; but for the abuse of that right every person shall be responsible. In all prosecutions for libel, the truth of the matters alleged to be libellous may be given in justifica- tion. Art. 1, §§ 9 and 10. — Michigan : In all prosecutions for libels, the truth may be given in evidence to the jury ; and if it shall appear to the jury that the matter charged as libellous is true, and was pub- lished with good motives and for justifia- ble ends, the party shall be acquitted. The jury shall have the right to deter- mine the law and the fact. Art 6, § 25. — Wisconsin : Same as New York. Art. 1, § 3. — Minnesota : The liberty of the press shall forever remain inviolate, and all persons may freely speak, write, and pub- lish their sentiments on all subjects, being responsible for the abuse of such right. Art. 1, § 3.- Oregon: No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject what- ever ; but every person shall be responsi- ble for the abuse of this right. Art. 1, § 8. — California : Same as New York. Art. 1, § 9. — Kansas : The liberty of the press shall be inviolate, and all persons may freely speak, write, or publish their senti- ments on all subjects, being responsible' for the abuse of such right ; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury ;> and if it shall appear that the alleged li- bellous matter was published for justifia- ble ends, the accused party shall be ac- quitted. Bill of Rights, § 11. — Missouri : That no law shall be passed impairing the freedom of speech ; that every person shall be free to say, write, or publish whatever he will on every subject, being, responsible for all abuse of that liberty ; and that in all prosecutions for libel, the, truth thereof may be given m evidence, and tlie jury, under the direction of the court, shall determine the law and the fact. Art. 2, § 14. — Nebraska: Same as Illinois. Art. 1, § 6. — Arkansas: The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions is one of the inval- uable rights of man, and all persons may freely speak, write, and publish their sen- timents on all subjects, being responsible for the abuse of such right. In all crim- inal prosecutions for libel, the truth may be given in evidence to the jury ; and if it shall appear to the jury that the matter charged as libellous is true, and was pub- lished with good motives and for justifia- ble ends, the party shall be acquitted. Art. 1, § 2. — Florida : Every person may freely speak and write his sentiments on all subjects, being responsible for the. abuse of that right, and no law shall be passed to restrain or abridge the liberty of speech or the press. In all eriminal prosecutions and civil actions for libelj the truth may be given in evidence to the jury; and if it appear that the matter charged as libellous is true, and was pub- lished with good motives, the party shall be acquitted or exonerated. Declaration of Rights, § 10. — Georgia ; No law shall ever be passed to curtail or restrain the liberty of speech or of the press ; any person may speak, write, and publish his sentiments on all subjects, being respon- sible for the abuse of that liberty. Art. 1, § 1, par. 15. — Louisiana : No law shall be passed . . . abridging the freedom of speech or of the press. Bill of Rights, Art. 4. — North Carolina: The freedom q| dH. XII.] LIBERTY OF SPEECH AND OF THE PEESS. 513 new rights, but their purpose is to protect the citizen in the enjoy- ment of those already possessed. We are at once, therefore, turned back from these provisions to the pre-existing law, in order that we may ascertain what the rights are which are thus protected, and what is the extent of the privileges they undertake to assure. At the common law, however, it will be found that liberty of the press was neither well protected nor well defined. The art of printing, in the hands of private persons, has, until within a comparatively recent period, been regarded rather as an instru- ment of mischief, which required the restraining hand of the gov- ernment, than as a power for good, to be fostered and encouraged. Like a vicious beast it might be made useful if properly harnessed and restrained. The government assumed to itself the right to determine what might or might not be published ; and censors were appointed without whose permission it was criminal to pub- lish a book or paper upon any subject. Through all the changes the press is one of the great bulwarks of liberty, and therefore ought never to be restrained ; but every individual shall be held responsible for the abuse of the same. Declaration of Rights, § 20. — South Caro- lina : All persons may freely speak, write, and publish their sentiments on any sub- ject, being responsible for the abuse of that right ; and no laws shall be enacted to restrain or abridge the liberty of speech or of the press. In prosecutions for the publication of papers investigating the official conduct of officers or men in pub- lic capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence ; and in all indictments for libel the jury shall be judges of the law and the facts. Art. 1, §§ 7 and 8. —Alabama : That any citizen may speak, write, and publish his senti- ments on all subjects, being responsible for the abuse of that liberty. That in prosecutions for the publication of papers investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information, the truth there- of may be given in evidence ; and that in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court. Art. 1, §§ 5 and IS. — Mississippi: The fi-eedom of speech and of the press shall be held sacred ; and in all indictments for libel, the jury shall determine the law and the facts, under the direction of the court. Art. 1, § 4. — Texas: Every citizen shall be at liberty to speak, write, or publish his opinions on any subject, being respon- sible for the abuse of that privilege ; and no law shall ever be passed curtailing the liberty of speech or of the press. In pros- ecutions for the publication of papers, in- vestigating the official conduct of officers or men in a public capacity, or when the matter published is proper for public in- formation, the truth thereof may be given in evidence; and in. all prosecutions for libels, the jury shall have the right to de- termine the law and the facts, under the direction of the court, as in other cases. Art. 1, §§ 5 and 6. — Virginia : That the freedom of the press is one of the great bulwarks of liberty, and can never be re- strained but by despotic governments, ard any citizen may speak, write, and publish his sentiments on all subjects, being re- sponsible for the abuse of that liberty. Art. 1, § 14. — Colorado: That no law shall be passed impairing the freedom of speech ; that every person shall be free to speak, write, or publish whatever he will on any subject, being responsible for all abuse of that liberty ; and that [in] all suits and prosecutions for libel, the truth thereof may be given in evidence, • and the jury, under the direction of the court, shall determine the law and the fact. Art. 2, §10. 514 CONSTITUTIONAL LIMITATIONS. [OH. XXL of government, fkia censorship was continued until after the Revolution of 1688, and there are no instances in English history of more cruel and relentless persecution than for the publication of books which now would pass unnoticed by the authorities. To a much later time the press was not free to publish even the cur- rent news of the day where the government could suppose itself to be interested in its suppression. Many matters, the publica- tion of which now seems injpprtant to the just, discreet, and har- monious administration of fyQ© institutions, and to the proper observation of public officers by those interested in the discharge of their duties, were treated by the public authorities as offences against good order, and contempts of their authority. By a fic- tion not very far removed from the truth, the Pa,rliament was supposed to sit with closed doors. No official publication of its debates was provided for, and no oth,er was allowed-^ The brief, sketches which found their way into print were usually disguised under the, garb of ^scussiona in a fictitious parliameiiit, held in a foreign country. Several times the Parliament resolved that any such publicatijon, or any intermeddling by letter-writers, was a breach of their privileges, and should be punished accordingly on discovery of the offenders. For such a publication in 1747 the editor of the " Gentleman's IJagazine " was brought to the bar of the House of Commons for reprimand, and only discharged on expressing his contrition. The general publication of parliamen- tary debates dates only from the American Revolution, and even then was still considered a technical breach of pirivilege.^ The American Colonies followed the practice of the parent country.' .Even the laws were not at first published for general 1 In 1641, Sir Edvrard Peering was to be privileged ; and comments on pub* expelled and imprisoned for publishing a lie legislative proceedings are not action- coUection of his own speeches, and the able, so long as a jury shall think them book was qrdered to be burned by the honest and made in a, fair spirit, and such common hangman. See May's Const, ^.s are justified by the circumstances. Hist. c. 7. Wason v. Walter^ Law Kep. 4 Q. B. 73. 2 See May's Constitutional History, ' The General Court of Massachusetts c. 7, 9, and 10, for a complete account of '^' appointed two persons, in October, 1662, the struggle between the government and licensers of the press, and prohibited the the press, resulting at last in the complete publishing any books or papers which enfranchisement and protection of the should not be supervised by. them ; and iii lp,tter in the. publication of all, matters q:f 1663 the. supervisorei having allowed of public interest, and in the discussion of the printing ' Thomas h, Kempis de Imi- public affairs. Fneedom to report pro- tatione Christ!,' the court interposed, ' it ceedings and debate^ was due at last to being wrote by a popish minister, and Wilkes, who, worthless as he was, proved containing some things less safe to be in- a great public benefactor in his obstinate fused among the people,' and therefore defence, of liberty of the press and secu- they commended to the licensers a more rity from arbitrary search and arrest. A^ full revisal, an|3 ordered, the press to stop fair publication of a debate is now held in the mean time." 1 Hutchinson's Mass. CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 515 circulation^ and it seemed to be thought desirable by the magis- trates to keep the people in ignorance of the precise boundary be- tween that which was lawful and that which was prohibited, as more likely to make them- avoid all doubtful actions. The magistrates of Massachusetts, when compelled by public opinion to suffer the publication of general laws in 1649, permitted it under protest, as a hazardous experiment. For publishing the laws of one session in Virginia, in 1682, the printer was arrested and put under bonds until the king's pleasure could be known, and the king's pleasure was declared that no printing should be allowed in the Colony.^ There were not wanting instances of the public burning of books, as offenders against good ordeifi Such was the fate of Elliot's book in defence of unmixed princi- ples of popular freedom,^ and Calef's book against Cotton Mather, which was given to the flames at Cambridge.^ A single print- ing-press was introduced into the Colony so early as 1639 ; * but the publication even of State documents did not become free until 1719, when, after a quarrel between Governor Shute and the House, he directed that body not to print one of their remon- strances, and, on their disobeying, sought in vain to procure the punishment of their printer.* When Dongan was sent out as Gov- ernor of New York in 1683, he was expressly instructed to suffer no printing,® and that Colony obtained its first press in 1692, through a Philadelphia printer being driren thence for publishing an address from a Quaker, in which he accused his brethren in office of being inconsistent with their principles in exercising political authority.'' So late as 1671, Governor Berkeley of Vir- ginia expressed his thankfulness that neither free schools nor printing were introduced in the Colony, and his trust that these breeders of disobedience,^ heresy, and sects, would long be un- known.^ The public bodies of the united, nation did not at once invite publicity to their deliberations. The Constitutional Convention of 1787 sat with closed doors^ and although imperfect reports 257, 2d' ed. See 1 Tyler, Hist, of Am. and an almanac printed until 1640. 1 Literature, 112, 113. A license is given Thomas, Hist, of Printing, 149 ; Mass. in Mass. Hist. Col. 3d Ser. vol. 7, p. 171. Hist. Col. 4th Ser. vol. 6, pp. 99, 376. 1 1 Hildreth, History of (he United There is a " Narrative of Newspapers in States 561. New England " in Mass. Hist. Col. 1st Ser. 2 1 'Hutchinson's Mass. (2d ed.) 211 ; vol. 5, p. 208. 2 Bancroft, 78 ; 1 Hildreth, 452; 2 Pal- 6 2 Hildreth, 298. frey's New England, 511, 512. « 2 Hildreth, 77. 8 1 Bancroft, 97 ; 2 Hildreth, 166. ' 2 Hildreth, 171. * The press was actually brought over ' 1 Hildreth', 526 ; 2 Hen. Stat. 517 ; in 1638, but not set up until the following 1 Tyler, Hist, of Am. Literature, 89; year, and nothing but the Freeman's Oath 'Wise^s Seven Decades of the Union, 810. 616 CONSTITUTIONAL LIMITATIONS. [CH. XIL of the debates have since been published, the injunction of secrecy upon its members was never removed. The Senate for a time followed this example, and the first open debate was had in 1793, on the occasion of the controversy over the right of Mr. Gallatin to a seat in that body.^ The House of Representatives sat with open doors from the first, tolerating the presence of re- porters,^ over whose admission, however, the Speaker assumed control, — and refusing in 1796 the pittance of two thousand dol- lars for full publication of debates. It must be evident from these historical facts that liberty of the press, as now understood and enjoyed, is of very recent origin ; ^ and commentators seem to be agreed in the opinion that the term itself means only that liberty of publication without the previous permission of the government, which was obtained by the abolition of the censorship. In a strict sense, Mr. Hallam says, it consists merely in exemption from a licenser.^ A similar view is expressed by De Lolme. " Liberty of the press," he says, " consists in this : that neither courts of justice, nor any other judges whatever, are authorized to take notice of writings in- tended for the press, but are confined to those which are actually printed." * Blackstone also adopts the same opinion,^ and it has been followed by American commentators of standard authority as embodying correctly the idea incorporated in the constitu- tional law of the country by the provisions in the American Bills of Rights.* It is conceded on all sides that the common-law rules that sub- jected the libeller to responsibility for the private injury, or the public scandal or disorder occasioned by his conduct, are not abolished by the protection extended to the press in our constitu- tions. The words of Ch. J. Parker of Massachusetts on this sub- ject have been frequently quoted, generally recognized as sound in principle, and accepted as authority. " Nor does our constitu- 1 " This broke the spell of delibera- in 1766, on the motion of Otis. Tudor's tions in secret conclave ; and a few days Life of Otis, 252. afterwards, on the 20th of the same 2 n jg mentioned neither in the Eng- month, a general resolution was adopted lish Petition of Rights nor in the Bill ot by the Senate, that, after the end of the Rights ; of so little importance did it present annual session, its proceedings in seem to those who were seeking to re- its legislative capacity should be with dress grievances in those days, open doors, unless in special cases which, « Hallam's Const. Hist, of England, in the judgment of the body, should re- 0. 15. quire secrecy." Life of Madison, by * De Lolme, Const, of England, 254. Rives, Vol. III. p. 371. 6 4 ri. Q^m. 151. The first legislative body in America « Story on Const. § 1889 ; 2 Kent, 17 to throw open its debates to the public et seg. ; Rawle on Const, c. 10. was the General Court of Massachusetts, CH. Xn.] LIBEETT OF SPEECH AND OF THE PEESS. 517 tion or declaration of rights," he says, speaking of his own State, " abrogate the common law in this respect, as some have insisted. The sixteenth article declares that < liberty of the press is essen- tial to the security of freedom in a State ; it ought not therefore to be restrained in this Commonwealth.' The liberty of the press, not its licentiousness : this is the construction which a just re- gard to the other parts of that instrument, and to the wisdom of those who founded it, requires. In the eleventh article it is de- clared that ' every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or charac- ter ; ' and thus the general declaration in the sixteenth article is qualified. Besides, it is well understood and received as a com- mentary on this provision for the liberty of the press, that it was intended to prevent all such previous restraints upon publications as has been practised by other governments, and in early times here, to stifle the efforts of patriots towards enlightening their fellow-subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse ; like the right to keep fire- arms, which does not protect him who uses them for annoyance or destruction." ^ But while we concede that liberty of speech and of the press does not imply complete exemption from responsibility for every thing a citizen may say or publish, and complete immunity to ruin the relputation or business of others so far as falsehood and de- traction may be able to accomplish that end, it is nevertheless believed that the mere exemption from previous restraints can- not be all that is secured by the constitutional provisions, inas- much as of words to be uttered orally there can be no previous censorship, and the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless pub- lications. An examination of the controversies which have grown out of the repressive measures resorted to for the purpose of restraining the free expression of opinion will suificiently indicate the pur- pose of the guaranties which have since been secured against such restraints in the future. Except so far as those guaranties 1 Commonwealth u. Blanding, 3 Pick. 2 Bep. Const. Court, 809 ; Respublica a. 304, 313. See charge of Chief Justice Dennie, 4 Yeates, 267 ; s. c. 2 Am. Dec. McKean of Pa., 5 Hildreth, 166 ; Whar- 402 ; Jones v. Townsend, 21 Fla. 431. ton's State Trials, 323 ; State v. Lehre, 518 CONSTITUTIONAL LIMITATIONS. [CH. XIL relate to the mode of trial, and are designed to secure to every accused person the right t» be judged by the opinion of a Jury upon the criminality of his act, their purpose has evidently been ' to protect parties in the free publication of matters of public con- cern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them. To guard against repressive measures by the several de- partments of the government, by means of which persons in power might secure themselves and their favorites from just scrutiny and condemnation, was the general purpose ; and there was no design or desire to modify the rules of the common law which protected private character from detraction and abuse, except so far as seemed necessary to secure to accused parties a fair trial. The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might pi-event such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelli- gent exercise of their rights as citizens. The constitutional liberty of speech and of the press, as we un- derstand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsi- bility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offence, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of individ- uals. Or, to state the same thing in somewhat different words, we understand liberty of speech and of the press to imply not only liberty to publish, but complete immunity from legal censure and punishment for the publication, so long as it is not harmful in its character, when tested by such standards as the law affords. For these standards we must look to the common-law rules which were in force when the constitutional guaranties were established, and in reference to which they have been adopted. At the common law an action would lie against any person publishing a false and malicious communication tending to dis- grace or injure another. Falsehood, malice, and injury were the elements of the action; but as the law presumed innocence of crime or misconduct until the contrary was proved, the falsity of an injurious publication was presumed until its truth was averred and substantiated by the defendant; and if false, malice in the publication was also presumed unless the publication was privi- CH. XII.] LIBERTY OF SPEECH AND OF THE PEES8, 519 leged under irules to be hereafter stated. There were many cases^ also, where the law presumed injury, and did not call upon the complaining party to make any other showing that he was damni* fied than such implication as arose from the characteP of the com- munication itself. One of these was where the words imputed a crime involving moral turpitude, and subjecting the guilty party to an infamous punishment;^ and it was not important tiiat the charge imported a crime already punished, or for which a prosecu- tion was barred by limitation of time.^ Another was where one was charged with contagious disease ; the effect of the charge, if believed, being to exclude him from the society of his fellows.^ An- ^ Brooker «. Coffin, 5 Johns. 188 ; s. o. 4 Am. Bee. 337 ; Alexander v. Alexander, 9 Wend. 141 ; Young v. Miller, 3 Hill, 21 ; Davis O.Brown, 27 Ohio St. 326 j Todd V. Bough, 10 S. & B. 18 ; Beck o. Stitzel, 21 Pa. St. 522; Stitzell v. Reynolds, 67 Pa. St. 54; Klumph v. Dunn, 66 Pa. St. 141; Shipp V. McGraw, 3 Murph. 463; B. c. 9 Am. Dec. 611 ; Hoag v. Hatch, 23 Conn. 586; Billings w. Wing, 7 Vt. 439; Harrington v. Miles, 11 Kan. 480 ; s. c. 15 Am. Bep. 355 ; Montgomery v. Dee- ley, 3 Wis. 709 ; Mlber ». Dauhterman, 26 Wis. 518; Perdue w. Burnett, Minor, 138 ; M'Cuen ». Ludlum, 17 N. J. 12 ; Gage V. Shelton, 3 Bich. 242 ; Pollard v^ Lyon, 91 U. S. 225; Wagaman v. Byers> 17 Md. 183; Castleberry v. Kelly, 26 Ga. 606 ; Burton v. Burton, 3 Greene (Iowa), 316 ; Simmons v. Holster, 13 Minn. 249 ; Seller v. Jenkins, 97 Ind. 430 ; Campbell V. Campbell, 54 Wis. 90; Lemons ». Wells, 78 Ky. 117 ; Brooks v. Harison, 91 N. Y. 83 ; Bacon v. Mich. Centr. R. E. Co., 56 Mich. 224; Boogher v. Knapp, 76 Mo. 457. Words imputing a non-indiet- 4ble offence are thus actionable. Webb .;. Beavan, L. R. 11 Q. B. D. 609. A simple charge of drunkenness is not, though an ordinance punishes public in' decent intoxication. Seery v. Viall, 17 Atl. Bep. 552 (R. L). See Melvin v. Weiant, 36 Ohio St. 184 ; Pollock v. Has- tings, 88 Ind. 248 ; Sterling v. Jugenhei- flier, 69 Iowa, 210; Christal v. Craig, 80 Mo. 367, for other illustrations of charges not actionable per se. If, however, the words, though seeming to charge a crime, are equivocal, and may be understood iii an innocent sense, they will not be action- able without the proper averment to show the sense in which they were used ; as, . for instance, where one is charged with having sworn falsely ; which may or may not be a crime. Oilman v. Lowell, 8 Wend. 573 ; Sheely ». Biggs, 2 Bar. & J. 363; 8. c. 3 Am. Dec. 552; Brown v. Hanson, 53 Ga. 632 ; Crone v. Ahgell, 14 Mich. 340; Bricker v. Potts, 12 Pa. St. 200 ; Casselman b. Winship, 3 Dak. 292. It is not necessary, however, that techni- cal words be employed ; if the necessary inference, taking the words together, is a charge . McKinnish, 15 Ala. 662 ; Porter V. Botkins, 59 Pa. St. 484 ; Hutchinson v. Wheeler, 35 Vt. 330 ; Thomas o. Dunna- way, 30 III. 373 ; Huson v. Dale, 19 Mich. 17; Jarnigan w. Fleming, 43 Miss. 710; Knight V. Foster, 39 N. H. 576. . * Commonwealth v. Clap, 4 Mass. 168 ; B. 0. 3 Am. Dec. 212 ; State ;;. Lehre, 2 Brev. 446 ; s. c. 4 Am. Dec. 596. * In Palmer v. Concord, 48 N. H. 311, suit was brought against a town for the destruction of a printing press by a mob. The defence was, that plaintiff had caused the mob by libellous articles published in his paper reflecting upon the army. Smith, J., says : "The flrs1i,of these arti- cles charges the United States forces in Virginia with cowardice, and holds them up as objects of ridicule therefor. The fourth article calls the army a ' mob ; ' and although the charges of murder and robbery may perhaps be considered as limited in their application, the charge of 622 CONSTITUTIONAL LIMITATIONS. [CH. XIL charges against a foreign prince or ruler was also held punishable as a public offence, because tending to embroil the two nations^ cowardice against the whole army is repeated. The fifth article in effect charges those bodies of soldiers who passed through, or occupied, Hampton, Martinsburg, Fairfax, or Germantown, with improper treatment of persons of all ages and sexes, in each of those places. If such charges had been made against a single soldier named in the articles, they would prima Jacie have constituted a libel. The tendency to expose him to contempt or ridicule could not be doubted, and the tendency to injure his professional reputation would be equally apparent. A soldier's character for cour- age or discipline is as essential to his good standing as a merchant's reputation for honesty, or a physician's reputation as to professional learning or skill, would be in their respective callings. And by mili- tary law, to which the soldier is amen- able, we suppose cowardice would be regarded as a crime punishable by severe penalties. As these charges were made against a body of men, without specifying individuals, it may be that no individual soldier could have maintained a private action therefor. But the question whe- ther the publication might not afford ground for a public prosecution is en- tirely different. Civil suits for libel are maintainable only on the ground that the plaintiff has individually suffered damage. Indictments for libel are sustained prin- cipally because the publication of a libel tends to a breach of the peace, and thus to the disturbance of society at large. It is obvious that a libellous attack on a body of men, though no individuals be pointed out, may tend as much, or more, to create public disturbances as an attack on one individual ; and a doubt has been suggested whether ' the fact of numbers defamed does not add to the enormity of the act.' See 2 Bishop on Criminal Law (8d ed.), § 922; Holt on Libel, 24&-247 ; Bussellon Crimes (Ist Am. ed.), 305-832. In Sumner ». Buel, 12 Johns. 475, where a majority of the court held that a civil action could not be maintained by an officer of a regiment, for a publication reflecting on the officers generally, unless there was an averment of special damage, Thompson, Ch. J., said, p. 478 : ' The of- fender in such case does not go without punishment. The law has provided a fit and proper remedy, by indictment ; and the generality and extent of such libels make them more peculiarly public of- fences.' In Kyckman v. Delavan, 25 Wend. 186, iValworth, Chancellor, — wh6 held, in opposition to the majority of the Court of Errors, that the plaintiff could not maintain a civil suit, because the publication reflected upon a class of ini. dividuals, and not upon the plaintiff per- sonally, — said, pp. 195-196 : ' There are many cases in the books where the writ- ers and publishers of defamatory charges, reflecting upon the conduct of particular classes or bodies of individuals, have been proceeded against by indictment or infor- mation, although no particular one was named or designated therein to whom the charge had a personal application. All those cases, however, whether the libel is upon an organized body of men, as a legislature, a court of justice, a church, or a company of soldiers, or upon a par- ticular class of individuals, proceed upon the ground that the charge is a misde. meaner, although it has no particular personal application to the individual of the body or class libelled ; because it tends to excite the angry passions of the community either in favor of or against the body or class in reference to the con- duct of which the charge is made, or be- cause it tends to impair the confidence of the people in their government or in the administrations of its laws.' In the course of his opinion the chancellor men- tions a Scotch case (Shearlock v. Beards- worth, 1 Murray's Report of Jury Cases) where a civil suit was maintained, which was ' brought by a lieutenant-colonel, in behalf of his whole regiment, for defama- tion, in calling them a regiment of cow- ards and blackguards.' In Kex v. Hector Campbell, King's Bench, Hil. Term, 1808 (cited in Holt on Libel, 249, 250), an information was granted for a libel on the College of Physicians; and the re- spondent was convicted and sentenced. Cases may be supposed where publi- cations, though of a defamatory nature, have such a wide and general application that, in all probability, a breach of the CH. XII.] LIBERTY OF SPEECH AND OF THE PKESS. 523 and to disturb the peace of the world.^ These common-law rules are wholesome, aud are still in force. We are not so much concerned, however, with the general rules pertaining to the punishment of injurious publications, as with those special cases where, for some reason of general public policy, the publication is claimed to be privileged, and where, consequently, it may be supposed to be within the constitutional protection. It has always been held, notwithstanding the general rule that malice is to be inferred from a false and injurious pub- lication, that there were some cases to which the presumption would not apply. These are the cases which are said to be priv- ileged. The term " privileged " is applied to two classes of com- munications : First, those which, for reasons of State policy, the law will not suffer to be the foundation of a civil action ; and, second, those in which the circumstances are held to rebut the legal inference of malice, and to throw upon the plaintiff the bur- den of offering some evidence of its existence beyond the mere falsity of the charge.^ The first class is absolutely privileged ; it embraces but few cases, which for the most part concern the ad- ministration of the government in some of its branches; the sec- ond is conditionally privileged, and the cases falling within it are more numerous. They are generally cases in which a party lias a duty to discharge which requires that he should be allowed to speak freely and fully that which he believes ; or where he is himself directly interested in the subject-matter of the communica- tion, and makes it with a view to the protection or advancement of his own interest, or where he is communicating confidentially with a person interested in the communication, and by way of ad- vice or admonition.^ Many such cases suggest themselves which peace would not be caused thereby ; but ous or libellous matter as to remove the it does not seem to us that the present regular and usual presumption of malice, publication belongs to that class. and to make It incumbent on the party " Our conclusion is that the jury complaining to show malice." Daniel, J., should have been instructed that the first, in White v. Nichols, 3 How. 266, 287. fourth, and fifth articles were prima fade And see Dillard v. Collins, 25 Gratt. 343 ; libellous ; and that the publication of Mclntyre v. McBean, 13 Q. B. (Ontario) those articles must be regarded as ' ille- 534. gal conduct,' unless justified or excused ' " When a communication is made in by facts sufficient to constitute a defence confidence, either by or to a person in- to an indictment for libel." terested in the communication, supposing 1 27 State Trials, 627 ; 2 May, Const, it to be true, or by way of admonition or History of England, c. 9. advice, it seems to be a general rule that 2 Lewis V. Chapman, 16 N. T. 369, malice (i. e. express malice) is essential 873, per Selden, J. ; Townsend on Libel to the maintenance of an action." 1 Star- and Slander, § 209. "It properly sig- kie on Slander, 321. See Harrison v. nifies this and nothing more: that the Bush, 5 El. & Bl. 344; Somerville v. excepted instances shall so far change Hawkins, 10 C. B. 583 ; Wright v. Wood- the ordinary rule with respect to slander- gate, 2 Cr. M. & R. 573 ; Whiteley v. 524 CONSTITUTIONAL LIMITATIONS. [CH. XIL are purely of private concern : such as answers to inquiries into the character or conduct of one formerly employed by the person to whom the inquiry is addressed, and of whom the information is sought with a view to guiding the inquirer in his own action in determining upon employing the same person;' answers to in- quiries by one tradesman of another as to the solvency of a person whom the inquirer has been desired to trust ; ^ answers by a credi- tor to inquiries regarding the conduct and dealings of his debtor, made by one who had become surety for the debt ; ^ communica- tions from an agent to his principal, reflecting injuriously upon the conduct of a third person in a matter connected with the agency ; * communications to a near relative respecting the char- acter of a person with whom the relative is in negotiation for marriage ; * and as many more like cases as would fall within the Adams, 15 C. B. n. s. 392. A paper signed by a number of parties agreeing to join in the expense of prosecuting others, who were stated therein to liave " robbed and swindled " them, is privi- leged. Klinck V. Colby, 46 N. Y. 427 ; s. c. 7 Am. Kep. 360. The statement in a report of an incorporated society cau- tioning the public against trusting a per- son who had formerly been employed in collecting subscriptions for them, is privi- leged. Gassett v. Gilbert, 6 Gray, 94. But see HoUiday v. Ont. Farmers, &c. Co., 1 Ont. App. 483. And the communi- cation by a merchant to a subsequent employer of a clerk whom he had recom- mended, of facts which caused him to change his opinion, is privileged. Fowles V. Bo wen, 30 N. Y. 20. And so is a com- munication made in good faith by a per- son employed in a confidential relation. Atwill V. Mackintosh, 120 Mass. 177. So is one charging a child with stealing, made in answar to inquiry of the mother. Long v. Peters, 47 Iowa, 239. So is a statement of an investigating ofBuer as to the worthiness of a person, to one interested in aiding him. Waller u. Loch, L. R. 7 Q. B. D. 619. So is a statement by a vendor's servant to the vendee of cattle, of the former's fraud. Mott v. Dawson, 46 Iowa, 533. 1 Pattison v. Jones, 8 B. & C. 578; Elara V. Badger, 23 111. 498 ; Noonan v. Orton, 32 Wis. 106 ; Hatch v. Lane, 105 Mass. 394 ; Bradley v. Heath, 12 Pick. 163. Compare Fryer «. Einnersl^y, 15 C. B. N. 8. 422. If the employer states his honest suspicion of the employee's guilt, the fact that he does not fully believe him guilty will not remove the privilege of the occasion. Billings o. Fairbanks, 139 Mass. 66. 2 Smith V. Thomas, 2 Bing. N. C. 372 j Storey v. Challands, 8 C. & P. 234. A statement made in honest belief to an in- quirer as to credit of a person who has referred him to the speaker, is privileged. Fahr v. Hayes, 50 N. J. L. 275. But the reports of a mercantile agency, published and distributed to its customers without regard to their special interest in any particular case, are not privileged. Tay- lor V. Church, 8 N. Y. 452 ; Sunderlin v. Bradstreet, 46 N. Y. 188 ; s. c. 7 Am. Rep. 322 ; Beardsley v. Tappan, 5 Blatch. 497 ; King V. Patterson, 49 N. J. L. 417; Bradstreet Co. i.-. Gill, 9 S. W. Rep. 753 (Tex.). But reports in response to in quiries from those who have such special interest are privileged. Ormsby v. Dou- glass, 37 N. Y. 477 ; Trussell v. Scarlett, 18 Fed. Rep. 214; Erber v. Dun, 12 Fed. Rep. 526. See also State v. Lonsdale, 48 Wis. 348 ; Locke v. Bradstreet Co., 22 Fed. Rep. 771 ; Woodruff v. Bradstreet Co., 116 N. Y. 217; Johnson ». Brad- street Co., 77 Ga. 172. * Dunman v. Bigg, 1 Campb. 269, note ; White V. Nicholls, 3 How. 266. * Washburn v. Cooke, 3 Denio, 110. See Easley v. Morse, 9 Ala. 266. « Todd V. Hawkins, 8 C. & P. 88. But there is no protection to such a commu- nication from a stranger. Joannes v. Bennett, 5 Allen, 170. Nor from a friend, unless it is in reply to a request for it. Byam v. Collins, 111 N. Y. 143. CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 525 same reasons.^ The rules of law applicable to these cases are very ■well settled, and are not likely to be changed with a view to greater stringency.^ Libels upon the Government. At the common law it was indictable to publish anything against the constitution of the country, or the established system of government. The basis of such a prosecution was the ten- dency of publications of this character to excite disaffection with the government, and thus induce a revolutionary spirit. The' law always, however, allowed a calm and temperate discussion of public events and measures, and recognized in every man a right to give every public matter a candid, full, and free discussion. It was only when a publication went beyond this, and tended to excite tumult, that it became criminal.^ It cannot be doubted, however, that the common-law rules on this subject were admin- istered in many cases with great harshness, and that the courts, in the interest of repression and at the instigation of the govern- ment, often extended them to cases not within their reasons. This was especially true during the long and bloody struggle with France, at the close of the last and beginning of the present century, and for a few subsequent years, until a rising public dis- 1 As to whether a stranger volunteer- for supposing an "innocent motive for ing to give information injurious to an- giving the information, and to deprive the otlier, to one interested in the knowledge, act of an appearance of officious inter- is privileged in so doing, see Coxhead v. meddling with the affairs of others." Richards, 2 M. G. & S. 569 ; and Bennett Lewis v. Chapman, 16 N. Y. 369, 375. V. Deacon, 2 M. G. & S. 628. A letter Where one communicated to an employer volunteering to an employer information his suspicions of dishonest conduct in a of his servant's untrustworthiness is not servant towards himself. Amann v. privileged when sent to effect the writer's Damm, 8 C. B. n. 8. 597. Where a purpose, and not in good faith to protect tradesman published in a newspaper that the employer. Over v. Sehiffling, 102 hisservant had left Jiis employ, and taken Ind. 191. Where a confidential relation upon himself to collect the tradesman's of any description, exists between the bills. Hatch v. Lane, 105 Mass. 394. parties, the communication is privileged ; Compare Lawler v. Earle, 5 Allen, 22. as where the tenant of a nobleman had ^ gee further, Harrison v. Bush, 5 El. written to inform him of his gamekeeper's & Bl. 844 ; Shipley «. Todhunter, 7 C. & neglect of duty. Cockagne v. Hodgkis- P. 680 ; Lawler v. Earle, 5 Allen, 22 ; son, 5 C. & P. 543. Where a son-in-law Grimes v. Coyle, 6 B. Monr. 301 ; Rector wrote to warn his mother-in-law of the v. Smith, 11 Iowa, 302 ; Goslin v. Can- bad character of a man she was about to non, 1 Harr. 3 ; Joannes v. Bennett, 5 marry. Todd v. Hawkins, 8 C. & P. 88. Allen, 169 ; State v. Burnham, 9 N. H. 34 ; Where a banker communicated with his Campbell v. Bannister, 79 Ky. 205 ; Beeler correspondent concerning a note sent to v. Jackson, 64 Md. 589 ; Billings v. Fair- hira for collection ; the court saying that banks, 136 Mass. 177 ; Bacon v. Mich. " all that is necessary to entitle such com- Centr. R. R. Co., 66 Mich. 166. munications to be regarded as privileged » Regina v. Collins, 9 C. & P. 456, per is that the relation of the parties should Littledale, 3. See the proceedings against be such as to afford reasonable ground Thomas Paine, 27 State Trials, 857. 526 CONSTITUTIONAL LIMITATIONS. [CH. Xn. content with political prosecutions began to lead to acquittals, and finally to abandonment of all such attempts to restrain the free expression of sentiments on public affairs. Such prosecu- tions have now altogether ceased in England. Like the censor- ship of the press, they have fallen out of the British constitutional system. " When the press errs, it is by the press itself that its errors are left to be corrected. Repression lias ceased to be the policy of rulers, and statesmen have at length fully realized the wise maxim of Lord Bacon, that ' the punishing of wits enchances their authority, and a forbidden writing is thought to be a certain spark of truth that flies up in the faces of them that seek to tread it out.' " ^ We shall venture to express a doubt if the common-law prin- ciples on this subject can be considered as having been practically adopted in the American States. It. is certain that no prosecu- tions could now be maintained in the United States courts for libels on the general government, since those courts have no common-law jurisdiction,^ and there is now no statute, and never was except during the brief existence of the Sedition Law, which assumed to confer any such power. The Sedition Law was passed during the administration of the elder Adams, when the fabric of government was still new and untried, and when many men seemed to think that the breath of heated party discussions might tumble it about their heads. Its constitutionality was always disputed by a large party, and its impolicy was beyond question. It had a direct tendency to pro- duce the very state of, things it sought to repress; the prosecu- tions under it were instrumental, among other things, in the final overthrow and destruction of the party by which it was adopted, and it is impossible to conceive, at the present time, of any such state of things a^ would be likely to bring about its re-enactment, or the passage of any similar repressive statute.^ When it is among the fundamental principles of the govern- ment that the people frame their own constitution, and that in doing so they reserve to themselves the power to amend it from time to, time, as the public sentiment may change, it is difficult to conceive of any sound principle on which prosecutions for libels on the system of government- can be based, except when they are made in furthex-ance of conspiracy with the evident 1 "May, Constitutional History, o. 10. Cooper's- Case, Wharton's State Trials, " United States v. Hudson, 7 Cranch, 659 ; Haswell's Case, Wharton's State 32. See ante, p. 80, and cases cited in Trials, 684; Callendar's Case, Wharton's note. State Trials, 688. And see 2 Randall^ ' For prosecutions under this law, see Life of Jefferson, 417-421 ; 5 Hildretb; Lyon's Case, Wliarton's State Trials, 333 ; History of United States, 247, 365. CH. XII.] LIBERTY OF SPEECH AND OF THE FBESS. 527 intent and purpose to excite rebellion and civil war.^ It is very easy to lay down .a rule for the discussion of constitutional ques- tions ; that they are privileged, if conducted with calmness and temperance, and that they are not indictable unless they go beyond the bounds of fair discussion. But what is calmness and temperance, and what is fair in the discussion of supposed evils in the government ? And if something is to be allowed " for a little feeling in men's minds," ^ how great shall be the allowance ? The heat of the discussion will generally be in proportion to the magnitude of the evil as it appears to the party discussing it ; must the question whether he has exceeded due bounds or not be tried by judge and jury, who may sit under different circum- stances from those under which he has spoken, or at least after the heat of the occasion has passed away, and who, feeling none of the excitement themselves, may think it unreasonable that any one else should ever have felt it ? The dangerous character of such prosecutions would be the more glaring if aimed at those classes who, not being admitted to a share in the government, attacked the constitution in the point which excluded them. Sharp criticism, ridicule, and the exhibition of such feeling as a sense of injustice engenders, are to be expected from any discus- sion in these cases ; but when the very classes who have estab- lished the exclusion as proper and reasonable are to try as judges and jurors the assaults made upon it, they will be very likely to enter upon the examination with a preconceived notion that such assaults upon thetr reasonable regulations must necessarily, be unreasonable. If any such principle of repression should ever be recognized in the common law of America, it might reasonably be anticipated that in times of high party excitement it would lead to prosecutions by the party in power, to bolster up wrongs and sustain abuses and oppressions by crushing adverse criticism and discussion. The evil, indeed, could not be of long contin- uance ; for, judging from experience, the reaction would be speedy, thorough, and effectual ;• but it would be no less a seri- ous evil while it lasted, the direct tendency of which would be to excite discontent and to breed a rebellious spirit. Kepressioa of full and free discussion is dangerous in any government resting upon the will of the people. The people cannot fail to believe that they are deprived of rights, and will be certain to become discontented, when their discussion of public measures is, sought 1 The author of the Life and Times as inconsistent with the genius of free of Warren very truly remarks that " the institutions." P. 47. common-law offence of libelling a govern- " Regina v. Collins, 9 C. & P. 456, 460, ment is ignored in constitutional systems, per LMledak, 3. 528 CONSTITUTIONAL LIMITATIONS. [CH. XIL to be circumscribed by the judgment of others upon their temper- ance or fairness. They must be left at liberty to speak with the freedom which the magnitude of the supposed wrongs appears in their minds to demand ; and if they exceed all the proper bounds of moderation, the consolation must be, that the evil likely to spring from the violent discussion will probably be less, and its correction by public sentiment more speedy, than if the terrors of the law were brought to bear to prevent the discussion. The English common-law rule which made libels on the consti- tution or the government indictable, as it was administered by the courts, seems to us unsuited to the condition and circum- stances of the people of America, and therefore never to have been adopted in the several States. If we are correct in this, it would not be in the power of the State legislatures to pass laws which should make mere criticism of the constitution or of the measures of government a crime, however sharp, unreasonable, and intemperate it might be. The constitutional freedom of speech and of the press must mean a freedom as broad as existed when the constitution which guarantees it was adopted, and it would not be in the power of the legislature to restrict it, unless it might be in those cases of publications injurious to private character, or public morals or safety, which come strictly within the reasons of civil or criminal liability at the common law, but in which, nevertheless, the common law as we have adopted it failed to provide a remedy. It certainly could not be said that freedom of speech was violated by a law which should make imputing the want of chastity to a female actionable without proof of special damage ; for the charge is one of grievous wrong, with- out any reason in public policy demanding protection to the com- munication; and the case is strictly analogous to many other cases where the common law made the party responsible for his false accusations. The constitutional provisions do not prevent the modification of the common-law rules of liability for libels and slanders, but they would not permit bringing new cases within those rules when they do not rest upon the same or similar 1 In Bespublica v. Dennie, 4 Teates, this form of government. It was weak 267 ; s. o. 2 Am. Dec. 402, the defendant and wicked at Athens, it was bad in was indicted in 1805 for publishing the Sparta, and worse in Rome. It has been following in a public newspaper : " A tried in France, and terminated in despo- democracy is scarcely tolerated at any tism. It was tried in England, and re- period of national history. Its omens jected with the utmost loathing and are always sinister, and its powers are abhorrence. It is on its trial here, and its unpropitious. With all the lights of ex- issue will be civil war, desolation, and perience blazing before our eyes, it is im- anarchy. No wise man but discerns its possible not to discover the futility of imperfections, no good man but shudders CH. XII.] LIBERTY OF SPEECH AND OF THE PEESS. 529 Criticism upon Officers and Candidates for Office. There are certain cases where criticism upon public officers, their actions, character, and motives, is not only recognized as at its miseries, no tionest man but pro- claims its fraud, and no brave man but draws his sword against its force. Tlie institution of a scheme of polity so radi- cally contemptible and vicious is a mem- orable example of what the villany of some men can devise, the folly of others receive, and both establish in spite of reason, reflection, and sensation." Judge Yeates charged the jury, among other things, as follows : " The seventh sec- tion of the ninth article of the constitution of the State must be our guide upon this occasion ; it forms the solemn compact be- tween the people and the three branches of the government, — tlie legislative, ex- ecutive, and judicial powers. Neither of them can exceed the limits prescribed to them respectively. To this exposition of the public will every branch of the com- mon law and of our municipal acts of assembly must conform ; and if incom- patible therewith, they must yield and give way. Judicial decisions cannot weigh against it when repugnant there- to. It runs thus: ' The printing-presses shall be free to every person who under- takes to examine the proceedings of the legislature, or any branch of the govern- ment ; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invalua.ble rights of man ; and every citizen may freely speak, write, and print on any subject, being respon- sible for the abuse of that liberty. In prosecutions for the publication of papers, investigating the official conduct of ofli- cers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence ; and in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.' Thus it is evident that legislative acts, or of any branch of the government, are open to public discussion ; and every citizen may freely speak, write, or print on any subject, but is accountable for the abuse of that privilege. There shall be no licensers of the press. Publish as you please in the first instance, without con- trol ; but you are answerable both to the community and the individual if you proceed to unwarrantable lengths. No alteration is hereby made in the law as to private men affected by injurious pub- lications, unless tlie discussion be proper for public information. But ' if one uses the weapon of truth wantonly for dis- turbing the peace of families, he is guilty of a libel.' Per General Hamilton, in Croswell's Trial, p. 70. The matter pub- lished is not proper for public informa- tion. The common weal is not interested in such a communication, except to sup- press it. " What is the meaning of the words ' being responsible for the abuse of tliat liberty,' if the jury are interdicted from deciding on the case % Who else can constitutionally decide on it? The ex- pressions relate to and pervade every part of the sentence. The objection that the determinations of juries may vary at different times, arising from their differ- ent political opinions, proves too much. The same matter may be objected against them when party spirit runs high, in other criminal prosecutions. But we have no other constitutional mode of decision pointed out to us, and we are bound to use the method described. " It is no infraction of the law to pub- lish temperate investigations of the na- ture and forms of government. The day is long past since Algernon Sidney's cele- brated treatise on government, cited on this trial, was considered as a treasonable libel. The enlightened advocates of rep- resentative republican government pride themselves in the reflection that the more deeply their system is examined, the more fully will the judgments of honest men be satisfied that it is the most conducive to the safety and happiness of a free peo- ple. Such matters are ' proper for public information.' But there is a marked and evident distinction between such publica- tions and those which are plainly accom- panied with a criminal intent, deliberately 34 530 CONSTITUTIONAL LIMITATIONS. [CH XIL legitimate, but large latitude and great freedom of expression are permitted, so long as good faith inspires the communication. There are cases where it is clearly the duty of every one to speak freely what he may have to say concerning public officers, or those who may present themselves for public positions. Through designed to unloosen the social band of union,. totally to unhinge the minds of the citizens, and to produce popular discon- tent with tlie exercise of power by tlie known constituted autliorities. These latter writings are subversive of all gov- ernment and good order. ' The liberty of the press consists in publishing the truth, from good motives and for justifi- able ends, though it reflects on govern- ment or on magistrates.' Per General Hamilton, in Croswell's Trial, pp. 63, 64. It disseminates political knowledge, and, by adding to the common stock of free- dom, gives a just confidence to every in- dividual. But the malicious publications which I have reprobated infect insidiously the public mind with a subtle poison, and produce the most miscliievous and alarm- ing consequences by their tendency to anarchy, sedition, and civil war. We cannot, consistently with ourofScial duty, declare such conduct dispunishable. We believe that it is not justified by the words or meaning of our constitution. It is true it may not be easy in every in- stance to draw the exact distinguishing line. To the jury it peculiarly belongs to decide on the intent and object of the writing. It is their duty to judge can- didly and fairly, leaning to the favorable side when the criminal intent is not clearly and evidently ascertained. " It remains, therefore, under our most careful consideration of the ninth article of the Constitution, for the jury to divest themselves of all political prejudices (if any such they have), and dispassionately to examine the publication which is the ground of the present prosecution. They must decide on their oaths, as they will answer to God and their country, whether the defendant, as a factious and seditious person, with the criminal intentions im- puted to him, in order to accomplish the object stated in the indictment, did make and publish the writing in question. Should they find the charges laid against them in the indictment to be well founded, they are bound to find him guilty. They must judge for themselves on the plain import of the words, without any forced or strained construction of the meaning of the author or editor, and determine on the correctness of the innuendoes. To every word they will assign its natural sense, but will collect the true intention from the context, the whole piece. Tliey will accurately weigh the probabilities of the charge against a literary man. Con- sequences they will wholly disregard, but firmly discharge their duty. Represen- tative republican governments stand on immovable bases, which cannot be shaken by theoretical systems. Yet if the con- sciences of the jury shall be clearly satis- fled that the publication was seditiously, maliciously, and wilfully aimed at the independence of the United States, the Constitution thereof, or of this State, they should convict the defendant. If, on the other hand, the production was honestly meant to inform the public mind, and warn them against supposed dangers in society, though the subject may have been treated erroneously, or that the cen- sures on democracy were bestowed on pure unmixed democracy, where the people en masse execute the sovereign power without the medium of their rep- resentatives (agreeably to our forms of government), as have occurred at different times in Athens, Sparta, Rome, France, and England, then, however the judg- ments of the jury may incline them to think individually, they should acquit the defendant. In the first instance the act would ^e criminal ; in the last it would be innocent. If the jury should doubt of the criminal intention, then also the law pronounces that he should be acquitted. 4 Burr. 2552, per Lord Mansfield." Ver- dict, not guilty. The fate of this prose- cution was the same that would attend any of a similar character in this country, admitting its law to be sound, except possibly in cases of violent excitement, and when it jury could be made to be- lieve that the defendant contemplated and was laboring to produce a change of government, not by constitutional means, but by rebellion and civil war. CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 531 the ballot-box the electors approve or condemn those who ask their suffrages ; and if they condemn, though upon grounds the most unjust or frivolous, the law affords no redress. Some officers, however, are not chosen by the people directly, but desig- nated through some other mode of appointment. But the public have a right to be heard on the question of their selection ; and they have the right, for such reasons as seem to their minds sufficient, to ask for their dismissal afterwards. They have also the right to complain of official conduct affecting themselves, and to petition for a redress of grievances. A principal purpose in perpetuating and guarding the right of petition is to insure to the public the privilege of being heard in these and the like cases. In New York a party was prosecuted for a libel contained in a petition signed by him and a number of other citizens of his county, and presented to the council of appointment, praying for the removal of the plaintiff from the office of district attorney of the county, which, the petition charged, he was prostituting to private purposes. The defendant did not justify the truth of this allegation, and the plaintiff had judgment. On error, the sole question was, whether the communication was to be regarded a^ privileged, that character having been denied to it by the court below. The prevailing opinion in the court of review character- ized this as " a decision which violates the most sacred and unquestionable rights of free citizens ; rights essential to the very existence of a free government ; rights necessarily connected with the relations of constituent and representative ; the right of peti- tioning for a redress of grievances, and the right of remonstrating to the competent authority against the abuse of official functions." The privilege of the petitioners was fully asserted and main- tained, and it was decided that to support an action for libel upon the petition, the plaintiff must assume the burden of showing that it was malicious and groundless, and presented for the pur- pose of injuring his character.^ Such a petition, it was said, although containing false and injurious aspersions, did not prima facie carry with it the presumption of malice.^ A similar ruling was made by the Supreme Court of Pennsylvania, where a party was prosecuted for charges against a justice of the peace, con- tained in a deposition made to be presented to the governor.^ A 1 Thorn v. Blanchard, 5 Johns. 508, less express malice is shown. Kent ». 528, per Clinton, Senator. Bongartz, 15 E. I. 72. 2 Ibid. p. 526, per L'Hommedieu, Sen- » Gray v. Pentland, 2 S. & K. 23 ; Fisk ator. A petition to the town council for v. Soniat, 33 La. Ann. 1400. A remon- the removal of a constable charging nn- strance against the employment of a fitness and misconduct is privileged un- school teacher is privileged. Van Ars- 532 CONSTITUTIONAL LIMITATIONS. [CH. XII. subsequent New York case enlarged this rule somewhat, and re- quired of the plaintiff, in order to sustain his action in any such case, to prove not only malice in the defendant, but also a want of probable cause for believing the injurious charges which the petition contained. The action for libel, in such a case, it was said, was in the nature of an action for malicious prosecution ; and in that action malice and want of probable cause are both necessary ingredients.^ And it has also been held that in such a case the court will neither compel the oflScer to whom it was addressed to produce the petition in evidence, nor suffer its con- tents to be proved by parol.^ The rule of protection which these cases lay down is generally conceded to be sound, and it has been applied in many other cases coming within the same reasons.^ To make it applicable, dale V. Laverty, 69 Pa. St. 103. For similar cases of privilege see Larkin v. Noonan, 19 Wis. 82; Whitney v. Allen, 62 111. 472 ; Reid v. Delorme, 2 Brev. 76 ; Decker v. Gaylord, 35 Hun, 584. 1 Howard v. Thompson, 21 Wend. 319. •See Harris v. Huntington, 2 Tyler, 129 ; g. c. 4 Am. Dec. 728; Bodwell v. Osgood, 3 Pick. 379 J s. c. 15 Am. Dec. 228; State V. Burnham, 9 N. H. 34 ; s. c. 31 Am. Dec. 217 ; Hill v. Miles, 9 N. H. 9 ; Cook V. Hill, 3 Sandf. 341 ; Whitney v. Allen, 62 111. 472; Forbes v. Johnson, 11 B. Monr. 48. But in Banner Pub. Co. v. State, 16 Lea, 176, it is held that false charges against State officers are not justified by probable cause and absence of malice. 2 Gray v. Pentland, 2 S. & R. 23. See Hare v. Mellor, 3 Lev. 1.38. 8 In Kershaw v. Bailey, 1 Exch. 743, the defendant was prosecuted for slander in a communication made by him to the vestry, imputing perjury to the plain- tiff as a reason why the vestry should not return liim on the list of persons qualified to serve as constables. The defendant was a. parishioner, and his communica- tion was held privileged. In O'Donaghue V. McGovern, 23 Wend. 26, a communica- tion from a member of a church to his bishop, respecting the character, moral conduct, and demeanor of a clergyman of the church, was placed upon the same footing of privilege. And see Reid v. Delorme, 2 Brev. 76 j Chapman v. Calder, 14 Pa. St. 865 ; Yiok^rs v. Stoneman, 41 N. W. Rep. 495 (Mich.). The proceed- ings of a church tribunal are ^uasz judicial, and those who participate in its proceed- ings in good faith and within the scope of its authority are privileged in law. Farns- worth V. Storrs, 5 Cush. 412 ; Fairchild v. Adams, 11 Cush. 549; Remington v. Congdon, 2 Pick. 310 ; Lucas v. Case, 9 Bush, 297 ; Kleizer v. Symmes, 40 Ind. 562; Servatius v. Pichel, 34 Wis. 292; Chapman v. Calder, 14 Pa. St. 365; Shurtleflf v. Stevens, 51 Vt. 501 ; s. c. 31 Am. R. 698 ; York v. Pease, 2 Gray, 282; Dunn V. Winters, 2 Humph. 512; Mc- Millan V. Birch, 1 Binn. 178 ,' s. o. 2 Am. Dec. 426. Making charges to a church having authority to discipline is not actionable unless there is express malice : Dial v. Holter, 6 Ohio St. 228 ; Over V. Hildebrand, 92 Ind. 19; and words spoken between members of the same church in the course of discipline are privileged. Jarvis v. Hatheway, S Johns. 180 ; Landis v. Campbell, 79 Mo. . 433. But an accusation by a church member against one who is not a church member cannot be considered privileged. Coombs V. Rose, 8 Blackf. 155. Nor ac- cusations by a parishioner against a clergyman not made to church authorities. State V. Bienvenu, 36 La. Ann. 378. A letter to a member of a minister's associa- tion about another member written by one not a member is not privileged. ShurtlefE v. Parker, 130 Mass. 293. The preferring of charges to a lodge of Odd Fellows by one member against another is privileged : Streety o.Wood, 15 Barb. 106; and reports made to a lodge of Oild CH. XII.] LIBERTY OF SPEECH AND OF THE PBESS. 533 however, it is essential that the petition or remonstrance be ad- dressed to the body or officer having the power of appointment or removal, or the authority to give the redress or grant the re- lief which is sought ; or at least that the petitioner should really and in good faith believe he is addressing himself to an authority possessing power in the premises.^ Such being the rule of privilege when one interested in the Fellows and published with the minutes are privileged. Kirkpatricl^ v. Eagle Lodge, 26 Kan. 884. An affidavit as to the credibility of a witness at a masonic trial is not privileged where neither the witness nor affiant is a member of the lodge. Nix u. Caldwell, 81 Ky. 293. A communication is privileged if made in good faith with a view to recovering stolen goods. Grimes v. Coyle, 6 B. Monr. 301 ; Brow v. Hathaway, 13 Allen, 239 ; Eames v. Whittaker, 123 Mass. 842. An agreement by partners to prosecute persons suspected of robbing the firm is privileged. Klinck v. Colby, 46 N. Y. 427; s. c. 7 Am. Bep. 360. And so is a communication advising a sheriff to pros- ecute a person for larceny, sent by a law student who was employed by the sheriff. Washburne v. Cooke, 3 Denio, 110. An advertisement warning the public against negotiable notes alleged to have been stolen is privileged. Commonwealth v. Featherstone, 9 Phil. (Pa.) 594. Words spoken m good faith by a public officer in discharge of his official duties are privilegrfd. Mayo v. Sample, 18 Iowa, 306 ; Bradley .... Heath, 12 Pick. 163 ; s. o. 22 Am. Dec. 418; In re Invest. Com., 11 Atl. Rep. 429 (R. L); Dewe «. Water- bury, 6 Can. S. C. R. 143. So is a com- munication in good faith by a school principal to the trustees of charges against the character of a subordinate. Halstead V. Nelson, 36 Hun, 149. See O'Connor ». Sill, 60 Mich. 175. A remonstrance to the board of excise, against the granting of a license to the plaintiff, comes under the same rule of protection. Vanderzee V. McGregor, 12 Wend. 545. See also Kendillon v. Maltby, 1 Car. & Marsh. 402. Woodward v. Lander, 6 C. & P. 548. So does a statement by a mayor to a council as to the unfitness of a city attorney for his post. Greenwood v. Cobbey, 42 N. W. Bep. 413 (Neb.). A report by offigers to stockholders is privileged, but not, it seems, the publication of it. Philadel- phia, &c. R. R. Co. V. Quigley, 21 How. 202. A statement of causes of discharge of an employee, given only to officers of the employing company, and of other like companies for their protection, is con- ditionally privileged. Missouri Pac. Ry. Co. V. Richmond, 11 S.W. Rep. 556 (Tex.). 1 This is recognized in all the cases referred to. See also Fairman v. Ives, 5 B. & Aid. 642. In that case a petition addressed by a creditor of an officer in the army to the Secretary of War, bona fide and with a view of obtaining through his interference the payment of a debt due, and containing a statement of facts which, though derogatory to the officer's character, the creditor believed to be true, was held not to support an action. A letter to the Postmaster-General com- plaining of the conduct of a postmaster, with a view to the redress of grievances, is privileged. Woodward v. Lander, 6 C. & P. 548; Cook v. Hill, 8 Sandf. 341. A statement to a legislative committee in good faith as to a matter with which it had power to deal is privileged. Wright V. Lothrop, 140 Mass. 885. And a com- plaint to a master, charging a servant with a dishonest act which had been imputed to the complaining party, has also beer held privileged. Coward w. Wel- lington, 7 C. & P. 531. And see,, further, Hosmer v. Loveland, 19 Barb. 111. A petition is privileged while being circu- lated. Vanderzee v. McGregor, 12 Wend. 545; Streety v. Wood, 15 Barb. 105. If, however, a petition is circulated and ex- hibited, but never presented, the fact that the libellous charge has assumed the form of a petition will not give it protec- tion. State V. Burnham, 9 N. H. 34. And see Hunt v. Bennett, 19 N. Y. 173 ; Van Wyck V. Aspinwall, 17 N. Y. 190. An ad- dress by citizens to an officer requesting his resignation on the ground of his cor- ruption is not privileged. CotuUa v. Kerr, 11 S.W. Rep. 1058 (Tex.). 534 CONSTITUTIONAL LIMITATIONS. [CH. XU. discharge of powers of a public nature is addressing himself to the body having the authority of appointment, supervision, or removal, the question arises whether the same reasons do not require the like privilege when the citizen addresses himself to his fellow-citizens in regard to the conduct of persons elevated to office by their suffrages, or in regard to the character, capacity, or fitness of those who may present themselves, or be presented by their friends, — which always assumes their assent, — as can- didates for public positions. When Morgan Lewis was governor of the State of New York, and was a candidate for re-election, a public meeting of his oppo- nents was called, at which an address was adopted reviewing his public conduct, and bringing various charges against him. Among other things he was charged with want of fidelity to his party, ifith. pursuing a system of family aggrandizement in his appointments, with signing the charter of a bank, having notice that it liad been procured by fraudulent practices, with publishing doctrines unworthy of a chief magistrate and subversive of the dearest interests of society, with attempting to destroy the liberty of the press by vexatious prosecutions, and with calling out the militia without occasion, thereby putting them to unnecessary trouble and expense. These seem to have been the more serious charges. The chairman of the meeting signed the address, and he was prosecuted by the governor for the libel contained therein. No justification was attempted upon the facts, but the defendant relied upon his constitutional privilege. His defence was not sustained. Said Mr. Justice Thompson, speaking for the court : — " Where the act is in itself unlawful, the proof of justiftcation or excuse lies on the defendant, and on failure thereof the law implies a criminal intent.^ If a libel contains an imputation of a crime, or is actionable without showing special damage, malice is, prima facie, implied ; and if the defendant claims to be exon^ erated, on the ground of want of malice, it lies with him to show it was published under such circumstances as to rebut this pre- sumption of law.2 The manner and occasion of the publication have been relied on for this purpose, and in justification of the libel. It has not been pretended but that the address in question would be libellous if considered as the act of an individual ; but its being the act of a public meeting, of which the defendant was a member, and the publication being against a candidate for a public office, have been strenuously urged as affording a complete justification. The doctrine contended for by the defendant's 1 5 Burr. 2667; 4 T. R. 127. " 1 T. R. 110. CH. xil] libeety of speech and of the peess. 535 counsel results in the position that every publication ushered forth under the sanction of a public political meeting, against a candidate for an elective office, is beyond the reach of legal in- quiry. To such a proposition I can never yield my assent. Al- though it was urged by the defendant's counsel, I cannot discover any analogy whatever between the proceedings of such meetings and those of courts of justice, or any other organized tribunals known in our law for the redress of grievances. That electors should have a right to assemble, and freely and openly to examine the fitness and qualifications of candidates for public offices, and communicate their opinions to others, is a position to which I most cordially accede. But there is a wide difference between this privilege and a right irresponsibly to charge a candidate with direct specific and unfounded crimes. It would, in my judgment, be a monstrous doctrine to establish, that, when a man becomes a candidate for an elective office, he thereby gives to others a right to accuse him of any imaginable crimes with impunity. Candidates have rights as well as electors ; and those rights and privileges must be so guarded and protected as to harmonize one with the other. If one hundred or one thousand men, when as- sembled together, undertake to charge a man with specific crimes, I see no reason why it should be less criminal than if each one should do it individually at different times and places. All that is required, in the one case or the other, is, not to transcend the bounds of truth. If a man has committed a crime, any one has a right to charge him with it, and is not responsible for the ac- cusation ; and can any one wish for more latitude than this ? Can it be claimed as a privilege to accuse ad libitum a candidate with the most base and detestable crimes ? There is nothing upon the record showing the least foundation or pretence for the charges. The accusations, then, being false, the prima facie pre- sumption of law is, that the publication was malicious ; and the circumstance of the defendant being associated with others does not per se rebut this presumption. How far this circumstance ought to affect the measure of damages is a question not arising on the record. It may in some cases mitigate, in others enhance, them. Every case must necessarily, from the nature of the ac- tion, depend on its own circumstances, which are to be submitted to the sound discretion of a jury. It is difficult, and perhaps impracticable, to prescribe any general rule on the subject." ^ The difficulty one meets with in the examination of this opinion is in satisfying himself in what manner the privileges of electors, I Lewis V. Few, 5 Johns. 1, 35. See also Curtis ». Musfley, 6 Gray, 261 j Aldi rich V. Printing Co., 9 Minn. 13.3. 536 CONSTITUTIONAL LIMITATIONS. [CH. XII. of which it speaks, are protected by it. It is not discovered that the citizen who publicly discusses the qualifications and fitness of the candidate for public office who challenges his suffrage is, by this decision, so far as suits for recovery of private damages are concerned, placed on any different footing in the law from that occupied by one who drags before the public the character of a private individual. In either case, if the publication proves to be false, the law, it seems, attaches to it a presumption of malice. Nothing in the occasion justifies or excuses the act in one case more than in the other. It is true, it is intimated that it may lie in the sound discretion of a jury to be moderate in the imposition of damages, but it is also intimated that the jury would be at liberty to consider the circumstances of the public meeting an aggravation. There is absolutely no privilege of discussion to the elector under such a rule ; no right to canvass the character and conduct of candidates any more than the character and con- duct of others. Whatever reasons he may give his neighbors for voting against a candidate, he must be prepared to support by evidence in the courts. In criminal prosecutions, if he can prove the truth of his charges, he may be protected in some cases where he would not be if the person assailed was not thus appealing to public favor ; for when the State prosecutes, the accused must in all cases make a showing of a justifiable occasion for uttering even the truth, and this occasion for speaking the truth of a candidate the pending election may supply. The case above quoted has the sanction of a subsequent decision of the Court for the Correction of Errors, which in like manner repudiated the claim of privilege.^ The office then in question was that of Lieutenant-Governor, and the candidate was charged in public newspapers with habits of intoxication which unfitted him for the position. And this last decision has since been fol- lowed as authority by the Superior Court of New York ; in a case which differs from it in the particular that the office which the plaintiff was seeking was not elective, but was to be filled by an appointing board.^ The case of King v. Root ^ will certainly strike any one as re- markable when the evidence on which it was decided is con- sidered. The Lieutenant-Governor was charged in the public press with intoxication in the Senate Chamber, exhibited as he 1 King B. Root, 4 Wend. 113 ; b. o. 21 8 4 Wend. 113 ; s. o. 21 Am. Dec. 102. Am. Dec. 102. See the same case in the Supreme Court, 2 Hunt V. Bennett, 4 E. D. Smith, 647 ; 7 Cow: 613. It has recently been fol- s. c. 19 N. Y. 173. See Duncombe v. lowed in Illinois, in the case of Bearick Daniell, 8 C. & P. 213. v. Wilcox, 81 111. 77. CH. Xn,] UBEETT OF SPEECH AND OF THE PRESS. 537 was proceeding to take his seat as presiding officer of that body. When prosecuted for libel, the publishers justified the charge as true, and brought a number of witnesses who were present on the occasion, and who testified to the correctness of the statement. There was therefore abundant reason for supposing the charge to have been published in the full belief in its truth. If it was true, there was abundant reason, on public grounds, for making the publication. Nevertheless, the jury were of opinion that the pre- ponderance of evidence was against the truth of the charge, and being instructed that the only privilege the defendants had was " simply to publish the truth and nothing more," and that the unsuccessful attempt at justification — which in fact was only the forming of such an issue, and supporting it by such evidence as showed the defendants had reason for making the charge — was in itself an aggravation of the offence, they returned a verdict for the plaintiff, with large damages. Throughout the instruc- tions to the jury the judge presiding at the trial conceded to the defendant no privilege of discussion whatever as springing from the relation of elector and candidate, or of citizen and representa- tive, but the case was considered and treated as one where the accusation must be defended precisely as if no public considera- tions were in any way involved.^ The law of New York is not ptaced by these decisions on a footing very satisfactory to those who claim the utmost freedom of discussion in public affairs. The courts of that State have treated this subject as if there were no middle ground between absolute immunity for falsehood and the application of the same strict rules which prevail in other cases. Whether they have duly considered the importance of publicity and discussion on all matters of general concern in a representative government must be left to the consideration of judicial tribunals, as these questions 1 See also Onslow v. Home, 3 Wils. Weakley, 2 Overt. 99 ; s. c. 5 Am. Dec. 177 ; Harwood v. Astley, 1 New Rep. 47. 656.. Charges made through a newspaper It is libellous to charge a candidate with against a candidate for an oflBce filled by dishonesty and corruption : Rearick v. appointment do not, it seems, stand on Wilcox, 81 111. 77 ; Wheaton v. Beeclier, tlie same footing as if the office were 66 Mich. 307 ; with being under indic^ elective. Hunt v. Bennett, 19 N. Y. 173. ment : Jones v. Townsend, 21 Fla. 431 ; It is no justification for a libel against a with being guilty of forgery : Bronson candidate that it was published by the V. Bruce, 59 Mich. 467; with being a order of a public meeting of citizens, professional gambler, thief, and bully : Lewis v. Few, 5 Johns. 1. By an lionest Sweeney v. Baker, 13 W. Va. 158 ; s. o. mistake the chairman of a political meet- 31 Am, Rep. 757 ; with bartering away a ing read a letter charging a candidate public improvement for his own private with official misconduct, and it was held interests: Powers P.Dubois, 17 Wend. 63; he was not liable, as the statement was to utter such falsehoods as will cause per- conditionally privileged. Briggs v. Gar- sons not to vote for him. Brewer v. rett, 111 Pa. St. 404. 538 CONSTITUTIONAL LIMITATIONS. [CH. XU. shall come before them in the future. It is perhaps safe to say that the general public sentiment and the prevailing customs allow a greater freedom of discussion, ajid hold the elector less strictly to what he may be able to justify as true, than is done by these decisions.^ A much more reasonable rule — though still, we think, not sufficiently comprehensive and liberal — was indicated by Pollock, C. B., in a case where it was urged upon the court that a sermon, preached but not published, was the subject of criticism in the enlarged style of commentary which that word seems to introduce according to the decided cases ; and that the conduct of a clergy- man with reference to the parish charity, and especially to the rules governing it, justified any bona fide remarks, whether founded in truth in point of fact, or justice in point of commen- tary, provided only they were an honest and bona fide comment. " My brother Wilde," he says, " urged upon the court the impor- tance of this question ; and I own I think it is a question of very grave and deep importance. He pressed upon us that, wherever the public had an interest in such a discussion, the law ought to protect it, and work out the public good by permitting public opinion, through tlie medium of the public press, to operate upon such transactions. I am not sure that so extended a rule is at all necessary to the public good. I do not in any degree com- plain ; .on the contrary, I think it quite right that all matters that are entirely of a public nature — conduct of ministers, con- duct of judges, the proceedings of all persons who are responsible to the public at large — are deemed to be public property ; and that all bona fide and honest remarks upon such persons and their conduct may be made witli perfect freedom, and without being questioned too nicely for either justice or truth." ^ But these remarks were somewhat aside from the case then before the 1 " Freedom of speech is a principal and an impartial posterity will not fail to pillar of a free government; when tliis render him justice. Those abuses of the support is taken away, the constitution freedom of speech are the excesses of of a free society is dissolved, and tyranny liberty. /They ought to be repressed ; is erected on its ruins. Republics and but to whom dare we commit the care of limited monarchies derive their strength doing it ? An evil magistrate, entrusted and vigor from a popular examination with power to punish fir words, would be into the action of the magistrates ; this armed with a weapon the most destructive privilege in all ages has been and always and terrible. Under pretence of pruning will be abused. The best of men could off the exuberant branches, he would be not escape the censure and envy of the apt to destroy the tree." Franklin, Works times they lived in. Yet this evil is not by Sparks, Vol. II. p. 285. so great as it might appear at first sight. ^ Gathercole v. Miall, 15 M. & W. 819, A magistrate who sincerely aims at the 332. SeeCommonwealtht;. Clap, 4Mas3. good of society will always have the in- 163 ; s. o. 3 Am. Dec. 212, per Parsons, Ch. qlinations of a great majority on his side; J.; Townshend on Libel and Slander, § 260. CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 539 learned judge, and though supported by similar remarks from his associates, yet one of those associates deemed it important to draw such a distinction as to detract very much from the value of this privilege. " It seems," he says, " there is a distinction, although I must say I really can hardly tell what the limits of it are, between the comments on a man's public conduct and upon his private conduct. I can understand that you have a right to comment on the public acts of a minister, upon the public acts of a general, upon the public judgments of a judge, upon the public skill of an actor ; I can understand that ; but I do not know where the limit can be drawn distinctly between where the comment is to cease, as being applied solely to a man's public conduct, and where it is to begin as applicable to his private character ; because, although it is quite competent for a person, to speak of a judgment of a judge as being an extremely erro- neous and foolish one, — and no doubt comments of that sort have great tendency to make persons careful of what they say, — and although it is perfectly competent for persons to say of an actor that he is a remarkably bad actor, and ought not to be permitted to perform such and such parts, because he performs them so ill, yet you ought not to be allowed to say of an actor that he has disgraced himself in private life, nor to say of a judge or of a minister that he has committed felony, or anything of that description, which is in no Way connected with his public conduct or public judgment ; and therefore there must be some limits, although I do not distinctly see where those limits are to be drawn. No doubt, if there are such limits,, my brother Wilde is perfectly right in saying that the only ground on which the verdict and damages can go is for the excess, and not for the lawful exercise of the criticism." ^ The radical defect in this rule, as it seems to us, consists in its assumption that the private character of a public officer is some- thing aside from, and not entering into or influencing, his public conduct ; that a thoroughly dishonest man may be a just minister,, and that a judge who is corrupt and debauched in private life may be pure and upright in his judgments ; in other words, that an evil tree is as likely as any other to bring forth good fruits. Any such assumption is false to human nature, and contradictory to general experience ; and whatever the law may say, the general i 1 Alderson, B., same case, p. 338. The Charges against the private character of pablication of a false statement of spe' a sheriff who has not announced himself cific aets of misconduct in office of a as a candidate for re-election are not public man are not privileged. Davis made on a privileged occasion. Com. i'. V. Shepstone, L. R. 11 App. Cas. 187. Wardwell, 136 Ma«8. 164. 540 CONSTITUTIONAL LIMITATIONS. [CH. XIL public will still assume that a corrupt life will influence public conduct, and that a man who deals dishonestly with his fellows as individuals will not hesitate to defraud them in their aggregate and corporate capacity, if the opportunity shall be given him. They are therefore interested in knowing what is the character of their public servants, and what sort of persons are offering themselves for their suffrages. And if this be so, it would seem that there should be some privilege of comment ; that that privi- lege could only be limited by good faith and just intention ; and that of these it was the province of a jury to judge, in view of the nature of the charges made and the reasons which existed for making them. The English cases allow considerable latitude of comment to publishers of public journals, upon subjects in the discussion of which the public may reasonably be supposed to have an interest, and they hold the discussions to be privileged if conducted within the bounds of moderation and reason.^ A more recent case, how- ever, limits the range of privilege somewhat, and suggests a dis- tinction which we are not aware has ever been judicially pointed out in this country, and which we are forced to believe the Ameri- can courts would be slow to adopt. The distinction is this : That if the officer or functionary whose conduct is in question is one in whose duties the general public, and not merely the local public, has an interest, then a discussion of ■ his conduct is privileged ; 1 In Kelley u. Sherlock, Law Rep. 1 upon a debate in the House of Lords. Q. B. 686, it was held that a sermon com- The plaintiff had presented a petition to menting upon public affairs — e.g. the that body, charging Sir Fitzroy Kelly appointment of chaplains for prisons and with having, many years before, made a the election of a Jew for mayor — was a statement false to liis own knowledge, in proper subject for comment in the papers, order to deceive a committee of the House And in Kelly v. Tinling, Law. Rep. 1 of Commons ; and praying inquiry, and Q. B. 699, a church-warden, having writ- his removal from an of&ce he held, if the ten to the plaintiff, the incumbent, accus- charge was found true. A debate ensued, ing him of having desecrated the church and the charge was wholly refuted. Held, by allowing books to be sold in it during that this was a subject of great public service, and by turning the vestry-room concern, on which a writer in a publid into a cooking-apartment, the correspond- newspaper had full right to comment ; ence was published without the plaintiff's and the occasion was therefore so far permission in the defendant's newspaper, privileged that the comments would not with comments on the plaintiff's conduct be actionable so long as a jury should Held, that this was a matter of public in- think them honest, and made in a fair terest, which might be made the subject spirit, and such as were justified by the of public discussion ; and that the publica- circumstances disclosed in the debate, tion was therefore not libellous, unless the The opinion by Chief Justice Cockbum is language used was stronger than, in the very clear and pointed, and reviews all opinion of the jury, the occasion justified, the previous decisions. See further, Fair- In Wason V. Walter, L. R. 4 Q. B. 73, child v. Adams, II Cush. 549 ; Terry v. the proprietor of the " London Times " Fellows, 21 La. Ann. 375. was prosecuted for comments in his paper CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 541 otherwise it is not. Thus the public journals are privileged to com- ment freely within the limits of good faith, on the manner in which a judge performs his duties, but they are not privileged in like man- ner in the case of an official charged with purely local duties, such, for instance, as the physician to a local public charity. We can- not believe there is any sufficient reason for allowing free discus- sion in the one case and not in the other ; but the opinion is of sufficient importance to justify special attention being directed to it.i And in this country it has been held that where a charge against an officer or a candidate respects only his qualifications for the office, and does not impugn his character, it forms no basis for a recovery of damages. To address to the electors of a district let- ters charging that a candidate for office is of impaired understand- ing, and his mind weakened by disease^is presenting that subject to " the proper and legitimate tribunal to try the question." " Tal- ents and qualifications for office are mere matters of opinion, of which the electors are the only competent judges." ^ 1 Purcell V. Sowler, L. E. 1 C. P. Div. 781. The plaintiff was medical oflScer of tiie Knutsford workhouse, and the alleged libel consisted in a report of an inquiry by the board in cliarge into his conduct and the treatment of the poor under him, and comments thereon. The following cases are commented upon and distin- guished : Davis v. Duncan, 9 C. P. 396 ; Kelly V. Tinling, L. R. 1 Q. B. 699 ; Hen- wood V. Harrison, L. R. 7 C. P. 606; Wa- Bon V. Walter, L. R. 4 Q. B. 73. It is clear that a trustee of a mining corpora- tion is not such an oflBcer as to be sub- jected to general criticism under the priv- ilege of the press. Wilson v. Fitch, 41 Cal. 363. ~ 2 Mayrant v. Richardson, 1 Nott & McCord, 348 ; s. o. 9 Am. Dec. 707. It is not libellous to publish in good faith any charges against a candidate for office, af- fecting his qualifloations and fitness for the office : Commonwealth v. Morris, 1 Va. Cases, 175; b. c. 5 Am. Dec. 515; Commonwealth v. Odell, 3 Pittsb. (Pa.) 449; Commonwealth v. Clap, 4 Mass. 163 ; s. c. 3 Am. Dee 212 ; Mott v. Daw- son, 46 Iowa, 533 ; Bays i>. Hunt, 60 Iowa, 251 ; State v. Balch, 31 Kan. 465 ; Marks V. Baker, 28 Minn. 162; Express Print- ing Co. V. Copeland, 64 Tex. 354; to charge him with being idle, un- educated, and ignorant: Sweeney v. Baker, 13 W. Va. 158; 8. c. 81 Am. Kep. 757. But see cases, ante. p. 537, note 1. It is libellous to charge an officer with having taken a bribe : Hamilton v. Eno, 81 N. Y. 116 ; Wilson V. Noonan, 35 Wis. 321 ; with corruption or want of integrity : Gove v. Blethen, 21 Minn. 80 ; 8. c. 18 Am. R. 380; Russell v. Anthony, 21 Kan. 450; B. c. 30 Am. R. 436 ; Littlejohn ». Gree- ley, 13 Abb. Pr. 41 ; Dole v. Van Rensse- laer, 1 Johns. Cas. 330 ; Negley v. Farrow, 60 Md. 158 ; Neeb v. Hope, 111 Pa. St. 145 ; with being intoxicated while in discharge of his official duties : King v. Root, 4 Wend. 113 ; a. o. 21 Am. Dec. 102 ; Gott- behuet v. Hubachek, 36 Wis. 515; to charge a judge with being destitute of capacity or attainments necessary, for his station: Robbins v. Treadway, 2 J. J. Marsh. 540 ; s. c. 19 Am. Deo. 152 ; Spier- iilg V. Andrae, 45 Wis. 330 ; b. o. 30 Am. R. 744; to charge him with being disquali- fied and liable to impeachment : Richard- son V. State, 66 Md. 205 ; see Cooper v. People, 22 Pao. Rep. 190 (Col.) ; to charge an officer with having done that which should remove him from his seat : Hook V. Hackney, 16 S. & R. 385; Lansing V. Carpenter, 9 Wis. 540; to charge a sealer of weights and measures with " tampering with " and " doctoring " such weights and measures : Eviston v. Cra- mer, 47 Wis. 659 ; to charge a city phy- sician with causing the death of a pa- tient by reckless treatment ; Foster v. Scripps, 39 Mich. 376 ; s. o. 83 Am. K. 542 CONSTITUTIONAL LIMITATIONS. [CH. XII. Statements in the Course of Judicial Proceedings. Among the cases which are so absolutely privileged on reasons of public policy, that no inquiry into motives is permitted in an ac- tion for slander or libel, is that of a witness giving evidence in the course of judicial proceedings. It ia familiar law that no action will lie against him at the suit of a party aggrieved by his false testimony, even though malice be charged.^ The remedy against a dishonest witness is confined to the criminal prosecution for perjury.* So what a juror may say to his fellows iu the jury- room while they are considering their verdict, concerning one of the parties to the suit who has been a witness therein, cannot be the subject of an action for slander.* False accusations, however, contained in the affidavits (w other proceedings, by which a prose- cution is commenced for supposed crime, or in any other papers in the course of judicial proceedings, are not so absolutely pro- tected. They ai-e privileged,* but the party making them is liable 403 ; see Hart v. Von Gumpach, L. E. 4 Priv. C. 439 ; s. o. 4 Moak, 138 ; to call a member of Congress "a fawning syco- phant, a misrepresentative in Congress, and a grovelling office seeker." Thomas V. Crosswell, 7 Johns. 2G4 ; s. c. 5 Am. Dec. 269. It is not libellous to cliarge a judge with improprieties which would be no cause of impeachment : Bobbins i>. Treadway, 2 J. J. Marsh. 540 ; b. c. 19 Am. Dec. Ii52 ; nor with ordering unreas- onable bail: Miner W.Detroit Post, &o.Co., 49 ]VUch. 358 ; or an officer with giving his wife work in a public office and pay- ing her in her maiden name : Bell v. Sun Printing, &e. Co., 42 N. Y. Sup. Ct. 567 ; and it v not libellous for a committee of a college 'of piiarmacy to charge an in- spector of drugs with gross violation of duty, in a report made in good faith which was presented to the Secretary of the Treasury. Van Wyck ». Aspinwall, 17 N. y. 190 ; 4 Duer, 268. To charge cor- ruption, intimidation, and fraud in an elec- tion is actionable per ee. TiUson v. Bob- bins, 68 Me. 295 ; s. o. 28 Am. Rep. 50. See Barr v. Moore, 87 Pa. St. 885; s. c. 30 Am. Bep. 867. 1 Allen V. Crofoot, 2 Wend. 515 ; s. c. 20 Am. Dec. 647 ; Marsh v. Ellsworth, 50 N. Y. 309 ; Terry t>. Fellows, 21 La. Ann. 375; Smith v. Howard, 28 Iowa, 51; Shock V. McChesney, 4 Yeates, 507; s. c. 2 Am. Dec. 415 ; Calkins v. Sumner, 13 Wis. 193; Barnes v. MoCrate, 82 Me. 442; Dunlap v. Glidden, 31 Me. 485; Hutchinson v. Lewis, 75 Ind. 56 ; Verner V. Verner, 64 Miss. 321. See White v. Carroll, 42 N. Y. 161 ; B. c. 1 Am. Bep. 503. So of an answer to a legislative committee, though not under oatb. Wright V. Lotlirop, 148 Mass. 385. ^ But lie is not protected if what is testified is not pertinent or material to the cause, and be has been actuated by malice in stating it. White v. Carroll, 42 N. Y. 166 ; s. c. 1 Am. Bep. 503; Barnes V. McCrate, .32 Me. 442; Kidder o. Park- hurst, 3 Allen, 393 ; Shadden v. McElwee, 86 Tenn. 146. But in Hunckel v. Voneiff, 69 Md. 179, the privilege is held to cover reflections thrown out needlessly. He is not, however, to be himself the judge of what is pertinent or material wlien ques- tions are put to bim, and no objection or warning comes to him from court or counsel. Calkins v. Sumner, 13 Wis. 193. See also Warner v. Paine, 2 Sandf 195 ; Garr v. Selden, 4 N. Y. 91 ; Jennings v. Paine, 4 Wis. 358; Perkins v. Mitchell, 31 Barb. 461 ; Revis v. Smith, 18 C. B. 126 ; Grove v. Brandenburg, 7 Blaekf . 234 ; Cunningham v. Brown, 18 Vt. 128; Dun- lap V. Glidden, 31 Me. 435 ; Steinecke v. Marx, 10 Mo. App. 580. See Liles v. Gaster, 42 Ohio St. 631. s Dunham v. Powers, 42 Vt. 1 ; Rec- tor V. Smith, 11 Iowa, 302. * Astley V. Younge, Burr. 807 ; Strauss B. Meyer, 48 111. 885; Vausse v. Lee, 1 CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 543 to action, if actual malice be averred and proved.^ Preliminary information, furnished with a view to set on foot an inquiry into an alleged offence, or to institute a criminal prosecution, is, in like manner, privileged; 2 but the protection only extends to those communications which are in the course of the proceedings to bring the supposed offender to justice, or are designed for the pur- pose of originating or forwarding such proceedings; and commu- Hill (S. C), 197; b. c. 28 Am. Dec. 168; Bunton v. Worley, 4 Bibb, 38 ; 8. c. 7 Am. Dec. 735 ; Sanders v. RollinBon, 2 Strobli. 447 ; Francis v. Wood, 75 Ga. 648 ; but not if spoken without bona fide intention of prosecuting : Marshall v. Gunter, 6 Rich. 419 ; or in u court wliich does not have jarisdiction of tlie case. Hosmer v. Loreland, 19 Barb. 111. All allegations in pleadings, if pertinent, are absolutely privileged. Strauss v. Meyer, 48 111. 385 ; Xea o. White, 4 Sneed, 111; Forbes v. Johnson, 11 B. Mour. 48 ; Vinas v. Merch. &c. Co., 33 La. Ann. 1265 ; Prescott v. Tousey, 53 N. Y. S. C. 56; Wilson v. Sullivan, 7 S. E. Rep. 274 (Ga.) ; Range V. Franklin, 10 S. W. Rep. 721 (Tex.). See Lanning v. Christy, 30 Ohio St. 115. So, though the complaint is dismissed. Dada v. Piper, 41 Hun, 254. A petition alleging misconduct in ofSce filed by a receiver against his co-receiver in the action in which they were appointed is privileged. Bartlett v. Christhilf, 69 Md. 219. Charges made in the in- terest of Ills client by an attorney in opposition to the discharge of an in- solvent debtor are absolutely privileged. HoUis V. Meux, 69 Cal. 625. But libel- lous words spoken of a third person in the pleadings, if relevant, are only con- ditionally privileged : Ruohs v. Backer, 6 Heisk. 395; s. c. 19 Am. Rep. 598; Davis V. McNees, 8 Humph. 40; and when not pertinent and material are not privi- leged. McLaughlin v. Cowley, 127 Mass. 316 ; 131 Mass. 70 ; Wyatt v. Buell, 47 Cal. 624. 1 Padmore v. Lawrence, 11 Ad. & El. 380; Kine r. Sewell, 3 M. & W. 297 ; Bur- lingame v. Burlingame, 8 Cow. 141 ; Kid- der 0. Parkhurst, 3 Allen, 393 ; Doyle v. O'Doherty, 1 Car. & Marsh. 418 ; Wilson V. Collins, 5 C. & P. 373 ; Home a. Ben- tinck, 2 Brod. & Bing. 180; Jarvis v. Hathaway, 3 Johns. 180. In Goslin v. Cannon, 1 Harr. 3, it was held that where a crime had been committed, ex- pressions of opinion founded upon faots within the knowledge of the party, or communicated to him, made prudently and in confidence to discreet persons, and made obviously in good faith with a view only to direct their watchfulness, and enlist their aid in recovering the money stolen, and detecting and bringing to justice the offender, were privileged. The cause, occasion, object, and end, it was said, was justifiable, proper, and legal, and such as should actuate every good citizen. If a party, in presenting his case to a court, wanders from what is material to libel another, the libel is not privileged. Wyatt v. Buell, 47 Cal. 624. 2 Grimes u. Coyle, 6 B. Monr. 301. The subject of communications privileged on grounds of public policy will be found considered, at some length and with ability, in the recent case of Dawkins v. Lord Paulet, Law Hep. 5 C. B. 94. The publication complained of was by a mili- tary officer to his superior concerning the qualifications and capacity of the plain- tiff as a subordinate military officer under him ; and it was averred that the words were published by the defendant of ac- tual malice, and without any reasonable, prol)able, or justifiable cause, and not Ijgnafide, or in the bona fide discharge of defendant's duty as superior officer. On demurrer, a majority of the court (Mellor and Lush, JJ.) held the action would not lie: planting themselves, in part, on grounds of public policy, and in part, also, on the fact that the military code pro- vided a remedy for wrongs of the nature complained of; and quoting with ap- proval Johnstone v. Sutton, 1 T. R. 544, and Dawkins v. Lord Rokeby, 4 N. & F. 841. Cockbmm, Ch. J., delivered an able dissenting opinion. The decision is criti- cised in Maurice v. Worden, 54 Md. 233 ; B. 0. 39 Am. Rep. 384, where an analo- gous communication was held privileged conditionally, but not absolutely. 544 CONSTITUTIONAL LIMITATIONS. [CB. XII. nications not of that character are not protected, even although judicial proceedings may be pending for the investigation of the offence which the communication refers to.^ Still less would a party be justified in repeating a chai'ge of crime, after the person charged has been examined on his complaint, and acquitted of all guilt.^ Privilege of Counsel. One of the most important cases of privilege, in a constitutional point of view, is that of counsel employed to represent a party in judicial proceedings. The benefit of the constitutional right to counsel depends very greatly on the freedom with which he is al- lowed to act, and to comment on the facts appearing in the case, and on the inferences deducible therefrom. The character, con- duct, and motives of parties and their witnesses, as well as of other persons more remotely connected with the proceedings, enter very largely into any judicial inquiry, and must form the subject of comment, if they are to be usefully sifted and weighed. To make the comment of value, there must be the liberty to exam- ine the case in every possible light, to advance theories, and to sug- gest to those having the power of decision any view of the facts and of the motives of actors which shall appear tenable or even plausible. It sometimes happens in criminal proceedings, that, while no reasonable doubt can exist that a crime has been com- mitted, there may be very grave doubt whether the prosecutor or the accused is the guilty party ; and to confine the counsel for the defence to such remarks concerning the prosecutor as he might justify, if he had made them without special occasion, would render the right to counsel, in such cases, of little or no value. The law is not chargeable with the mockery of assuming to give a valuable privilege which, when asserted, is found to be so hampered and re- stricted as to be useless. ^ Dancaster o. Hewson, 2 M. & Ey. be privileged. To the same effect are the 176. Statements by a justice as to what casesof McClaughry w.Wetmore,6 Johns, was said by a person applying for a war- 82, and Kean v. McLaughlin, 2 S. & K. rant but not as part of a judicial hearing 469. See also Torrey v. Field, 10 Vt. are not privileged. McDermott v. Even- 353 ; Gilbert v. People, 1 Denio, 41. A ing Journal Co., 43 N. J. L. 488. report made by a grand jury upon a 2 Burlingame a. Burlingame, 8 Cow. subject which they conceive to be within 141. In Mower v. Watson, 11 Vt. 536, an their jurisdiction, but which is not, is action was brought for slander in saying nevertheless privileged. Rector m. Smith, to a witness who was giving his testimony 11 Iowa, 302. Matter inserted as part of on a material point in a cause then on a justice's oflScial return is privileged, if trial, to which defendant was a party, believed by the justice to be material to " That 's a lie," and for repeating the same the return. Aylesworth v. St. John, 25 statement to counsel for the opposite party Uun, 15S. afterwards. The words weraheld not to CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 545 The rule upon this subject was laid down in these words in an early English case : " A counsellor hath privilege to enforce any- thing which is informed him by his client, and to give it in evi- dence, it being pertinent to the matter in question, and not to examine whether it be true or false ; for a counsellor is at his peril to give in evidence that which his client informs him, being per- tinent to the matter in question ; but matter not pertinent to the issue, or the matter in question, he need not deliver ; for he is to discern in his discretion what he is to deliver, and what not ; and although it be false, he is excusable, it being pertinent to the matter. But if he give in evidence anything not material to the issue, which is scandalous, he ought to aver it to be true ; other- wise he is punishable ; for it shall be considered as spoken mali- ciously and without cause ; which is a good ground for the action. ... So if counsel object matter against a witness which is slanderous, if there be cause to discredit his testimony, and it be pertinent to the matter in question, it is justifiable, what he de- livers by information, although it be false.." ^ The privilege of counsel in these cases is the same with that of the party himself, ^ and the limitation upon it is concisely suggested in a Pennsylvania, case, " that if a man should abuse his privilege, and, under pre- tence of pleading liis cause, designedly wander from the point in question, and maliciously heap slander upon his adversary, I will not say that he is not responsible in an action at law." ^ Chief Justice Shaw has stated the rule very fully and clearly ; " We take the rule to be well settled by the authorities, that words spoken in the course of judicial proceedings, though they are such as impute crime to another, and therefore, if spoken elsewhere, would import malice and be actionable in themselves, are not actionable, if they are applicable and pertinent to the subject of inquiry. The ques- tion, therefore, in such cases is, not whether the words spoken are true, not whether they are actionable in themselves, but whether they were spoken in the course of judicial proceedings, and whether they are relevant or pertinent to the cause or subject of inquiry. And in determining what is pertinent, much latitude must be allowed to the judgment and discretion of those who are entrusted with the conduct of a cause in court, and a much larger 1 Brook V. Montague, Cro. Jac. 90. For the liability of counsel for inserting See tliis case approved and applied in irrelevant and injurious matter in the Hodgson V. Scarlett, 1 B. & Aid. 232. pleadings, see McLaughlin w. Cowley, 127 And see Mackay o. Ford, 5 H. & M. 792. Mass. 316. The client is not answerable 2 Hoar V. Wood, 3 Met. 193, per Shaw, for the slanders of his counsel in tnanag- Ch. J. ing his cause. Bayly v. Fourohy, 32 La. 3 McMillan v. Birch, 1 Binney, 178; Ann. 186. B. c. 2 Am. Dec. 426, per Tilghman, Ch. J. 36 546 CONSTITUTIONAL LIMITATIONS. [cH. XXL allowance made for the ardent' and excited feelings with which a party, or counsel who naturally and almost necessarily identifies himself with his client, may become animated, by constantly re- garding one side only of an interesting and animated controversy, in which the dearest rights of such party may become involved. And if these feelings sometimes manifest themselves in strong invectives, or exaggerated expressions, beyond what the occasion would strictly justify, it is to be recollected that this is said to a judge who hears both sides, in whose mind the exaggerated state- ment may be at once controlled and met by evidence and argument of a contrary tendency from the other party, and who, from the impartiality of his position, will naturally give to an exaggerated assertion, not warranted by the occasion, no more weight than it deserves. Still, this privilege must be restrained by some limit, and we consider that limit to be this : that a party or counsel shall not avail himself of his situation to gratify private malice by uttering slanderous expressions, either against a party, witness, or third person, which have no relation to the cause or subject-matter of the inquiry. Subject to this restriction, it is, on the whole, for the public interest, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech in conducting the causes and advocating and sustaining the rights of their con- stituents ; and this freedom of discussion ought not to be im- paired by numerous and refined distinctions." ^ Privilege of Legislators, . The privilege of a legislator in the use of language in debate is made broader and more complete thau that of the counsel or 1 Hoar V. Wood, 3 Met. 193, 197. See when made in the course of a judicial also Padmore v. Lawrence, 11 Ad. & El. proceeding, are absolutely privileged, 880; Ring D.Wheeler, 7 Cow. 725 J Mower even though tliey are false, malicious, V. Watson, 11 Vt. 536 ; g. o. 84 Am. Dec. and irrelevant to the issue in the case, 704 ; Gilbert v. People, 1 Denio, 41 ; Has- and without reasonable and probable tings V. Lusk, 22 Wend. 410; s. c. 34 Am. cause. Munster v. Lamb, L. E. 11 Q. Dee. 380; Bradley o. Heath, 12 Pick. 163 ; B. D. 688. In Hastings v. Lusk, supra, Staokpole v. Hennen, 6 Mart. n. s. 481 ; it is said that the privilege of counsel is as 8. c. 17 Am. Dec. 187 ; Shelfer «. Good- broad as that of a legislative body ; hew- ing, 2 Jones (N. C), 175; Lea w. White, 4 ever false and malicious may be the Sneed, 111 ; Marshall v. Gunter, 6 Rich, charge made by him affecting tlie repu- 419; Ruohs ». Backer, 6 Heisk. 395; Jen- tation of another, an action of slander nings V. Paine, 4 Wis. 858 ; Lawson v- will not lie, provided what is said be per- Hicks, 38 Ala. 279 ; Lester v. Thurmond, tinent to the question under discussion. 51 Ga. 118 ; Maulsby v, Eeifsnider, 69 And see Harden v. Cumstock, 2 A. K. Md. 143. In a unanimous opinion in both Marsh. 480; s. c. 12 Am. Dec. 168 ; War- the Divisional and Appeal Courts it has ner v. Paine, 2 Sandf . 195 ; Garr v. Sel- been held recently in England that conn- den, 4 N. Y. 91 ; Marsh v. Ellsworth, 50 sel stand on the same ground as wit- N. Y. 309 ; Spaidg v. Barrett, 57 III. 289 ; nesses and judges ; that their statements Jennings v. Paine, 4 Wis. 858. CH. XII.] LIBERTY OF SPEECH AND OF THE PRESS. 547 party in judicial proceedings by constitutional provisions, which give him complete immunity, by forbidding liis being questioned in any other place for anything said in speech or debate.^ In an early case in Massachusetts, the question of the extent of this constitutional privilege came before the Supreme Court, and was largely discussed, as well by counsel as by the court. The con- stitutional provision then in force in that State was as follows : " The freedom of deliberation, speech, and debate in either house cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever." The de- fendant was a B^ember of the General Court, and was prosecuted for uttering slanderous words to a fellow-member in relation to the plaintiff. The member to whom the words were uttered had moved a resolution, on the suggestion of the plaintiff, for the ap- pointment of an additional notary-public in the county where the plaintiff resided. The mover, in reply to an inquiry privately made by defendant, as to the source of his information that such appoint- ment was necessary, had designated the plaintiff, and the defend- ant had replied by a charge against the plaintiff of a criminal offence. The question before the court was, whether this reply was privileged. The house was in session at the time, but the re- mark was not made in course of speech or debate, and had no other connection with the legislative proceedings than is above shown. Referring to the constitutional provision quoted, the learned judge who delivered the opinion of the court in this case thus expressed his views : " In considering this article, it appears to .me that the privilege secured by it is not so much the privilege of the house as an organized body, as of each individual memljer composing it, who is entitled to this privilege, even against the declared will of the house. For he does not hold this privilege at the pleasure of the house, but derives it from the will of the people, expressed in the constitution, which is paramount to the will of either or both branches of the legislature. In this respect, the privilege here secured resembles other privileges attached to each member by another part of the constitution, by which he is exempted from arrest on mesne (or original) process, during his going to, returning from, or attending the General Court. Of these privileges, thus secured to each member, he cannot be de- prived by a resolve of the bouse, or by an act of the legislature. 1 There are proTiBiona to this effect in Practice of Legislative Assemblies, § 602, every State Constitution except those of has expressed the opinion that these pro- North Carolina, South Carolina, Missis- visions are unnecessary, and that the sippi, Texas, California, and Nevada, protection is equally complete without Mr. Cushing, in his work on the Law and them. 548 CONSTITUTIONAL LIMITATIONS. [CH. XIL " These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their repre- sentatives to execute the functions of their office without fear of prosecutions civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate, but will extend it to the giving of a vote, to the making of a written re- port, and to every other act resulting from the nature and in the execution of the office ; and I would define the article as securing to every member exemption from prosecution for everything said or done by him, as a representative, in the exercise of the func- tions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules. I do not confine the member to his place in the house, and I am satisfied that there are cases in which he is entitled to this privilege when not within the walls of the repre- sentatives' chamber. He cannot be exercising the functions of his office as member of a body, unless the body be in existence. The house must be in session to enable him to claim this privi- lege, and it is in session notwithstanding occasional adjournments for short intervals for the convenience of its members. If a member, therefore, be out of the chamber, sitting in committee, executing the commission, of the house, it appears to me that such member is within the reason of the article, and ought to be con- sidered within the privilege. The body of which he is a member is in session, and he, as a member of that body, is in fact dis- charging the duties of his office. He ought, therefore, to be protected from civil or criminal prosecutions for everything said or done by him in the exercise of his functions as a representa- tive, in committee, either in debating or assenting to or draught- ing a report. Neither can I deny the member his privilege when executing the duties of his office, in a convention of both houses, although the convention should be holden in the Senate Chamber." And after considering the hardships that might result to individ- uals in consequence of this privilege, he proceeds : " A more ex- tensive construction of the privileges of the members secured by this article I cannot give, because it could not be supported by the language or the manifest intent of the article. When a representative is not acting as a member of the house, he is not entitled to any privileges above his fellow-citizens ; nor are the rights of the people affected if he is placed on the same ground on which his constituents stand." And coming more particularly CH. XII.J LIBERTY OF SPEECH AND OF THE PKESS. 549 to the facts thea before the court, it was shown that the defendant was not in the discharge of any official duty at the time of utter- ing the obnoxious words ; that they had no connection or relevancy to the business then before the house, but might with equal perti- nency have been uttered at any other time or place, and conse- quently could not, even under the liberal rule of protection which the court had laid down, be regarded as within the privilege.^ Publication of Privileged Communications through the Press. If now we turn from the rules of law which protect communi- cations because of the occasion on which they are made, and the duty resting upon the person making them, to those rules which concern the spreading before the world the same communications, we shall discover a very remarkable difference. It does not fol- low because a counsel .may freely speak in court as he believes or is instructed, that therefore he may publish his speech through the public press. The privilege in court is necessary to the com- plete discharge of his duty to his client ; but when the suit is ended, that duty is discharged, and he is not called upon to appeal from the court and the jury to the general public.^ Indeed such an appeal, while it could not generally have benefit to the client in view, would be unfair and injurious to the parties re- flected upon by the argument, inasmuch as it would take only a partial and one-sided view of the case, and the public would not have, as the court and jury did, all the facts of the case as given in evidence before them, so that they might be in position to weigh the arguments fairly and understandingly, and reject injurious inferences not warranted by the evidence. The law, however, favors publicity in legal proceedings, so far as that object can be attained without injustice to the persons immediately concerned. The public are permitted to attend nearly all judicial inquiries, and there appears to be no sufficient reason why they should not also be allowed to see in print the reports of trials, if they can thus have them presented as fully as they are exhibited in court, or at least all the material portion of the proceedings impartially stated, so that one shall not, by means of them, derive erroneous impressions, which he would not have been likely to receive from hearing the trial itself. It seems to be settled that a fair and impartial account of judicial proceedings, which have not been ex parte, but in the 1 Coffin V. Coffin, 4 Mass. 1, 27 ; s. c. ^ The publication of slanderous re- 3 Am. Dec. 189. See Jefferson's Manual, marks of counsel during a trial is not § 3 ; Hosraer v. Loveland, 19 Barb. Ill ; privileged. Com. v. Godshalk, 13 Phila. State V. Burnhara, 9 N. 11. 84. 575. 550 CONSTITUTIONAL LIMITATIONS. [CH. XIL hearing of both parties, is, generally speaking, a justifiable publi- cation.^ But it is said that, if a party is to be allowed to publish what passes in a court of justice, he must publish the whole case, and not merely state the conclusion which he himself draws from the evidence.^ A plea that the supposed libel was, in sub- stance, a true account and report of a trial has been held bad ; ^ and a statement of the circumstances of a trial as from counsel in the case has been held not privileged.* The report must also be strictly confined to the actual proceedings in court, and must contain no defamatory observations or comments from any quarter whatsoever, in addition to what forms strictly and prop- erly the legal proceedings.^ And if the nature of the case is such as to make it improper that the proceedings should be spread before the public because of their immoral tendency, or of the blasphemous or indecent character of the evidence exhibited, the publication, though impartial and full, will be a public offence, and punishable accordingly.^ 1 Hoare ». Silverlaok, 9 C. B. 20; Lewis V. Lery, E. B. as E. 637 ; Byalls v. Leader, Law Rep. 1 Exch. 296. And see Stanley v. Webb, 4 Sandf. 21 ; Cincinnati Gazette Co. ■;. Timberlake, 10 Ohio St. 548; Torrey v. Field, 10 Vt. .353; Faw- cett V. Charles, 13 Wend. 473 ; McBee v. Fulton, 47 Md. 403; s. c. 28 Am. Rep. 465. But it is held the report must not only be fair, but be without malice. Ste- vens u. Sampson, L. R. 5 Ex. D. 53. A fair report of a judgment without publish- ing the evidence is /jmnayacie privileged. MacDougall v. Knight, L. R. 17 Q. B. D. 636. The privilege extends to the publi- cation of testimony taken on an investi- gation by Congress. Terry v. Fellows, 21 La. Ann. 375. And of the proceed- ings on trials in voluntary organizations. Barrows v. Bell, 7 Gray, 301. There is no privilege in publishing the contents of a bill or petition merely filed before a hearing. Barber v. St. Louis &c. Co., 3 Mo. App. 377; Cowley w. Pulsifer, 137 Mass. 392. " Lewis V. Walter, 4 B. & Aid 605. 8 Flint V. Pike, 4 B. & C. 473. See Ludwig V. Cramer, 53 Wis. 193. * Saunders v. Mills, 6 Bing. 213 ; Flint V. Pike, 4 B. & C. 473. And see Stanley V. Webb, 4 Sandf. 21 ; Lewis v. Walter, 4 B. & Aid. 605. A statement made by a newspaper, not purporting to be upon the authority of judicial proceedings, is not privileged. Storey v. Wallace, 60 111. 51. See Ludwig «. Cramer, 53 Wis. 193. And a publication of judicial proceedings is not privileged if it contain intrinsic evidence that it was not published for good motives, and for justifiable ends. Saunders v. Baxter, 6 Heisk. 369. The publication in a medical journal of an ac- count of the proceedings of a medical so- ciety in the expulsion of a member for cause is privileged. Barrows v. Bell, 7 Gray, 301. And so is the publication in a denominational organ of resolutions of an association of ministers. Shurtleff b. Stevens, 51 Vt. 501 ; s. c. 31 Am. Rep. 698. 6 Stiles V. Nokes, 7 East, 493 ; Delegal u. Highley, 3 Bing. N. C. 950. And see Lewis V. Clement, 3 B. & Aid. 702 ; Pit- tock V. O'Neill, «3 Pa. St. 253; s. c. 3 Am. Rep. 544 ; Clark v. Binney, 2 Pick. 112; Scripps v. Reilly, 88 Mich. 10; Bath- rick ». Detroit Post, &o. Co., 50 Mich. 629. Publication of a report of a judg- ment with a headline " Hotel Proprietors Embarrassed," is not privileged. Hayes .). Press Co., 18 Atl. Rep. 331 (Pa.). A statement that one was arrested after tes- tifying, on account of his criminating evi- dence, is not privileged as a report of a judicial proceeding. Godshalk v. Metz- gar, 17 Atl. Rep. 215 (Pa.). 6 Rex V. Carlile, 3 B. & Aid. 167 ; Rex V. Creevey, 1 M. & S. 273. CH. XII.] LIBEETY OF SPEECH AND OF J'HE PKESS. 551 It has, ho-vrever, been held, that the publication of ex parte proceedings, or mere preliminary examinations, though of a judi- cial character, is not privileged ; and when they reflect injuri- riously upon individuals, the publisher derives no protection from their having already been delivered in court.^ The reason for distinguishing these cases from those where the parties are heard is thus stated by Lord Mhnborough, in the early case of The King V. Fisher : a « Jurors and judges are still but men ; they cannot always control feeling excited by inflammatory language. If they are exposed to be thus warped and misled, injustice must 1 Duncan v. Thwaites, 3 B. & C. 556 ; Flint V. Pike, 4 B. & C. 473 ; Charlton v. Watton, 6 C. & P. 385; Rex v. Lee, 5 Esp. 123; Rex v. Fisher,. 2 Camp. 563; Delegal v. Highley, 3 Bing. N. C. 950 ; Behrens ». Allen, 3 Fost. & F. 135 ; Cin- cinnati Gazette Co. v. Timberlake, 10 Ohio, N. B. 548; Mathews v. Beach, 5 Sandf. 256 ; Huff v. Bennett, 4 Sandf. 120 ; Stanley v. Webb, 4 Sandf. 21 ; Usher • V. Severance, 20 Me. 9 ; s. c. 37 Am. Dec. 33. It seems, however, that if the pro- ceeding has resulted in the discharge of the person accused, or in a decision that no cause exists for proceeding against him, a publication of an account of it is privileged. In Curry ». Walter, 1 B. & P. 525, the Court of Common Pleas held that, in an action for libel, it was a good defence, under the plea of not guilty, that the alleged libel was a true account of what had passed upon a motion in the Court of King's Bench for an information against two magistrates for corruption in refusing to license an inn'; the motion having been refused for want of notice to the magistrates. In Lewis v. Levy, El, B1. & El. 537, the publisher of a news- paper gave a full report of an examinar tion before a magistrate on a charge of perjury, resulting in the discharge of the defendant; and the Court of Queen's Bench sustained the claim of privilege; distinguishing the case from those where the party was held for trial, and where the publication of the charges and evi- dence might tend to his prejudice on the trial. The opinion of Lord Campbell in the case, however, seems to go far to- wards questioning the correctness of the decisions above cited. See especially his quotation from the opinion of Lord- Dett- man, delivered before a committee of the House of Lords, in the year 184-% on the law of libel : " I have no doubt that [po- lice reports] are extremely useful for the detection of guilt by making facts notori- ous, and for bringing those facts more correctly to the knowledge of all parties interested in unravelling the truth. The public, I think, are perfectly aware that those proceedings are ex parte, and they become more and more aware of it in proportion to their growing intelligence ; they know that such proceedings are only in course of trial, and they do not form their opinion until the trial is had'. Per- fect publicity in judicial proceedings is of the highest importance in other points of view, but in its effects on character I think it desirable. The statement made in open court will probably find its way to the ears of all in whose good opinion the party assailed feels an interest, prob- ably in an exaggerated form, and tlie im- putation may often rest upon the wrong person ; both these evils are prevented by correct reports." In the case of Lewis v. Levy, it was insisted that the privilege of publication only extended to the pro- ceedings of the superior courts of law, and equity; but the court gave no counte- nance to any such distinction. See also Wason V. Walter, L. R. 4 Q. B. 73; Terry V. Fellows, 21 La. Ann. 875. 2 2 Camp. 568. Compare with this and the eases cited in the preceding note, Ryalls V. Leader, L. R. 1 Exch. 295; Smith V. Scott, 2 C. & K. 580; Acker- man v. Jones, 87 N. Y. Sup. C. R. 42. It is clear that the report is not privileged, if accompanied with injurious comments. Stiles V. Nokes, 7 East, 493; Common- wealth V. Blanding, 3 Pick. 304; s. c. 15 Am. Deo. 214; Usher v. Severance, 20 Me. 9; 8. o. 37 Am. Dec. 33; Pittock v. O'Niell, 63 Pa. St. 253; s. c. 3 Am. Rep. 544. 552 CONSTITUTIONAL LIMITATIONS. [CH. XIL sometimes be done. Trials at law, fairly repotted, although they may occasionally prove injurious to individuals, have been held to be privileged. Let them continue so privileged. The benefit they produce is great and permanent, and the evil that arises from them is rare and incidental. But these preliminary exami- nations have no such privilege. Their only tendency is to pre- judge those whom the law still presumes to be innocent, and to poison the sources of justice. It is of infinite importance to us all, that whatever has a tendency to prevent a fair trial should be guarded against. Every one of us may be questioned in a court of law, and called upon to defend his life and character. We would then wish to meet a jury of our countrymen with unbiassed minds. But for this there can be no security, if such publications are permitted." And in another case it has been said : " It is our boast that we are governed by that just and salutary rule upon which security of life and character often depends, that every man is presumed innocent of crimes charged upon him, until he is proved guilty. But the circulation of charges founded on ex 'parte testimony, of statements made, often under excite- ment, by persons smarting under real or fancied wrongs', may prejudice the public mind, and cause the judgment of conviction to be passed long before the day of trial has arrived. When that day of trial comes, the rule has been reversed, and the presump- tion of guilt has been substituted for the presumption of inno- cence. The chances of a fair and impartial trial are diminished. Suppose the charge to be utterly groundless. If every prelimi- nary ex parte complaint which may be made before a police magistrate may, with entire impunity, be published and scattered broadcast over the land, then the character of the innocent, who may be the victim of a conspiracy, or of charges proved afterwards to have arisen entirely from misapprehension, may be cloven down, without any malice on the part of the publisher. The refutation of slander, in such cases, generally follows its propaga- tion at distant intervals, and brings often but an imperfect balm to wounds which have become festered, and perhaps incurable. It is not to be denied that occasionally the publication of such proceedings is productive of good, and promotes the ends of justice. But, in such cases, the publisher must find his justifica- tion, not in privilege, but the truth of the charges." ^ 1 Stanley v. Webb, 4 Sandf. 21, 30. whether a publication of the proceedings See this case approved and followed in on preliminary examinations may not be Cincinnati Gazette Co. v. Timberlake, 10 privileged, where the accused is present Ohio St. 548, where, however, the court with full opportunity of defence. See are careful not to express an opinion Rex v. Fisher, 2 Camp. 563 ; Duncan v. CH. XII.] LIBERTY OF SPEECH AND OE THE PRESS. 553 Privilege of Publishers of News. Among the inventions of modern times, by which the world has been powerfully influenced, and from which civilization has received a new and wonderful impulse, must be classed the newspaper. Beginning with a small sheet, insignificant alike in matter and appearance, published at considerable intervals, and including but few in its visits, it has become the daily vehicle, to almost every family in the land, of information from all quarters of the globe, and upon every subject. Through it, and by means of the electric telegraph, the public proceedings of every civilized country, the debates of the leading legislative bodies, the events of war, the triumphs of peace, the storms iu the physical world, and the agitations in the moral and mental, are brought home to the knowledge of every reading person, and, to a very large ex- tent, before the day is over on which the events have taken place. And not public events merely are discussed and described, but the actions and words of public men are made public property ; and any person sufficiently eminent or notorious to become an object of public interest will find his movements chronicled in this index of the times. Every pai'ty has its newspaper organs ; every shade of opinion on political, religious, literary, moral, in- dustrial, or financial questions has its representative ; every locality has its press to advocate its claims, and advance its interests, and even the days regarded as sacred have their special papers to furnish reading suitable for the time. The newspaper is also the medium by means of which all classes of the people communicate with each other concerning their wants and desires, and through which they offer their wares, and seek bargains. As it has gradually increased in value, and in the extent and variety of its contents, so the exactions of the community upon its con- ductors have also increased, until it is demanded of the news- paper publisher that he shall daily spread before his readers a complete summary of the events transpiring in the world, public or private, so far as those readers can reasonably be supposed to take an interest in them ; and he who does not comply with this demand must give way to him who will. The newspaper is also one of the chief means for the education of the people. The highest and the lowest in the scale of intelli- gence resort to its columns for information ; it is read by those who read nothing else, and the best minds of the age make it the Thwaites, 3 B. & C. 556 ; Flint u. Pike, 4 Uslier v. Severance, 20 Me. 9 ; s. c. 37 B. & C. 473 ; Charlton v. Watton, 6 C. & P. Am. Dec. 33. 385; Behrens v. Allen, 3 F. & F. 135; 554 CONSTITUTIONAL LIMITATIONS. [CH. XIL medium of communication ■with each other on the highest and most abstruse subjects. Upon politics it may be said to be the chief educator of the people; its influence is potent in every legislative body ; it gives tone and direction to public sentiment on each important subject as it arises ; and no administration in any free country ventures to overlook or disregard an element so pervading in. its influence, and withal so powerful. And yet it may be doubted if the newspaper, as such, has ever influenced at all the current of the common law, in any particular important to the protection of the publishers. The railway has become the successor of the king's highway, and the plastic rules of the common law have accommodated themselves to the new con- dition of things ; but the changes accomplished by the public press seem to have passed unnoticed in the law, and» save only where modifications have been made by constitution or statute, the pub- lisher of tlie daily paper occupies to-day the position in the courts that the village gossip and retailer of scandal occupied two hun- dred years ago, with no more privilege and no more protection. We quote from an opinion by the Supreme Court of New York, in a case where a publisher of a newspaper was prosecuted for libel, and where the position was taken by counsel, that the pub- lication was privileged : " It is made a point in this case, and was insisted upon in argument, that the editor of a public newspaper is at liberty to copy an item of news from another paper, giving at the same time his authority, without subjecting himself to legal responsibility, however libellous the article may be, unless express malice be shown. It was conceded that the law did not, and ought not, to extend a similar indulgence to any other class of citizens ; but the counsel said that a distinction should be made in favor of editors, on the ground of the peculiarity of their occupation. That their business was to disseminate useful knowl- edge among, the people ; to publish such matters relating to the current events of the day happening at home or abroad as fell within the sphere of their observation, and as the public curiosity or taste demanded ; and that it was impracticable for them at all times to ascertain the truth or falsehood of the various statements contained in other journals. "We were also told that if the law were not tlms indulgent, some legislative relief might become necessary for the protection of this class of citizens. Undoubtedly if it he desirable tQ pamper a depraved public appetite or taste, if there be any such, by the republication of all the falsehoods and calumnies upon private character that may find their way into the press, — to give encouragement to the widest possible circula- tion of these vile and defamatory publications by protecting the CH. Xn.J LIBERTY OF SPEECH AKD OP THE PRESS. 555 retailers of them, — some legislative interference will be neces- sary, for no countenance can be found for the irresponsibility claimed in the common law. That reprobates the libeller, whether author or publisher, and subjects him to both civil and criminal responsibility. His offence is there ranked with that of the receiver of stolen goods, the perjurer and suborner of perjury, the disturber of the public peace, the cOnspira,tor, and other of- fenders of like character." And again : " The act of publication is an adoption of the original calumny, which must be defended in the same way as if invented by the defendant. The republica- tion assumes and indorses the truth of the charge, and when called on by the aggrieved party, the publisher should be lield strictly to the proof. If he chooses to become the indorser and retailer of private scandal, without taking the trouble of inquiring into the truth of what he publishes, there is no ground for com- plaint if the law, which is as studious to protect the character as the property of the citizen, holds him to this responsibility. The rule is not only just and wise in itself, but if steadily and inflexi- bly adhered to and applied by courts and juries, will greatly tend to the promotion of truth, good morals, and common decency on the part of the press, by inculcating caution and inquiry into the truth of charges against private character before they are pub- lished and circulated throughout the community." ^ If this strong condemnatory language were confined to the cases where private character is dragged before the public for detraction and abuse, to pander to a depraved appetite for scandal, 1 Hotchkiss V. Oliphant, 2 Hill, 510- case, was punished as a contempt of 513, per Nelson, Ch. J. And see King v. court. See also Respublica v. Oswald, 1 Root, 4 Wend. 113-138 ; s. c. 21 Am. Dec. Dall. 319; s. c. 1 Am. Dec. 246; Res- 102, per Walworth, Chancellor. " It has publica v. Passmore, 8 Yeates, 441 ; s. o. been urged upon you that conductors of 2 Am. Dec. 388 ; People v. Freer, 1 the public press are entitled to peculiar Caines, 518 ; Tenney's Case, 23 N. H. indulgences and have special rights and , 162 ? Sturoe's Case, 48 N. H. 428; State privileges The law recognizes no such ». Morrill, 16 Ark. 384 ; State v. Frew, 24 peculiar rights, privileges, or claims to in- W. Va. 416. But not publications as to a dulgenee They have no rights but such past proceeding. Cheadle w. State, 110 as are common to all. They have just Ind. 301. As to the power in England to the same rights that the rest of the com- punish the Uke conduct as a contempt, munityhave, and no more. They have see The King v. Clement, 4 B. & Aid. the right to publish the truth, but no 218; The Queen "• Lefroy, L. R^8 Q. B. right to publish falsehood to the injury of 134 ; b. c. 2 Moak, 250. But ,n Storey ^. others with impunity." Instructions ap- People, 79111. 45; s. c. 22 Am. Rep. 158, proved in Sheckell v. Jackson, 10 Cush. it was held a publisher could not be pun- 25. And see Palmer v. Concord, 48 ished as for contempt for an article re- N. H. 211. In People v. Wilson, 64 fleeting on the grand jury, because, under 111. 196 ; 8. c. 16 Am. Rep. 528, a pub- the guaranty of freedom of the press in lication regarding a pending cause cal- the Constitution of Illinois, he was en- culated to bring public odium upon the titled to jury trial, court in respect to its treatment of the 556 CONSTITUTIONAL LIMITATIONS. [CH. XIL its propriety and justice and the force of its reasons would be at once conceded. But a \evy large proportion of wliat the news- papers spread before the public relates to matters of public con- cern, in which, nevertheless, individuals figure, and must there- fore be mentioned in any account or discussion. To a great extent, also, the information- comes from abroad ; the publisher can have no knowledge concerning it, and no inquiries which he could make would be likely to give him more definite informa- tion, unless he delays the publication until it ceases to be of value to his readers. Whatever view the law may take, the public sen- timent does not brand the publisher of a newspaper as libeller, conspirator, or villain, because the telegraph despatches trans- mitted to him from all parts of the world, without any knowledge on his part concerning the facts, are published in his paper, in reliance upon the prudence, care, and honesty of those who have charge of the lines of communication, and whose interest it is to be vigilant and truthful. The public demand and expect accounts of every important meeting, of every important trial, and of all the events which have a bearing upon trade and business, or upon political affairs. It is impossible that these shall be given in all cases without matters being mentioned derogatory to individuals ; and if the question were a new one in the law, it might be worthy of inquiry whether some line of distinction could not be drawn ■which would protect the publisher when giving in good faith such items of news as would be proper, if true, to spread before the public, and which he" gives in the regular course of his employ- ment, in pursuance of a public demand, and without any negli- gence, as they come to him from the usual and legitimate sources, which he has reason to rely upon ; at the same time leaving him liable when he makes his columns the vehicle of private gossip, detraction, and malice. The question, however, is not new, and when the authorities are examined it appears that they have generally held the pro- prietors of, public journals to the same rigid responsibility with all other persons who publish what is injurious. If what they give as news proves untrue as well as damaging to individuals, malice in the publication is presumed.^ It is no excuse that what was published was copied without comment from another paper ,2 1 Barnes d. Campbell, 59 N. H. 128 ; » Hotchkiss v. Oliphant, 2 Hill, CIO. McAllister v. Detroit Free Press Co., 78 Even though they be preceded by the Mich. 388 ; Pratt v. Pioneer Press Co., 30 statement that they are so copied : San- Minn. 41 ; Mallory v. Pioneer Press Co., ford v. Bennett, 24 N. Y. 20 ; and accom- 34 Minn. 521. See Bronson v. Bruce, panied by a statement of disbelief. Com. 59 Mich. 467 ; Negley v. Tarrow, 60 v. Chambers, 15 Phila. 415. Md. 158. CH. Xll.] LIBERTY OF SPEECH AND OF THE PRESS. 557 or was given as a rumor merely ,i or that the source of the infor- mation was stated as a part of the publication ,2 or that the pub- lication was made in the paper without the knowledge of the proprietor, as an advertisement or otherwise,^ or that it is a correct and impartial account of a public meeting,* or that it is the speech of a murderer at the gallows,^ or that it has to do with the conduct of the plaintiff as a public official.® Criticisms on works of art and literary productions are allowable, but they must be fair and temperate, and the author himself must not be criti- (jised under cover of a criticism of his works ; nor must it be assumed that because he seeks the favor of the public for his productions, he thereby makes his private character and conduct 1 Wheeler v. Shields, 3 Dl. 348 j Mason V. Mason, 4 N. H. 110. See State v. Butman, 15 La. Ann. 166 ; Parker u. Mc- Queen, 8 B. Monr. 16 ; Sans v. Joerris, 14 Wis. 663 ; Hampton v. Wilson, 4 Dev. 468; Beardsley v. Bridgman, 17 Iowa, 290 ; Hawkins v. Lumsden, 10 Wis. 359 ; Knight V. Foster, 39 N. H. 576 ; Carpen- ter V. Bailey, 53 N. H. 590 ; Farr v. Raseo, 9 Mich. 353 j Sheahan v. Collins, 20 III. 325 ; McDonald v. Woodruff, 2 Dill. 244 ; Kex n. Newman, 1 EI. & Bl. 268. 2 Dole V. Lyon, 10 Johns, 447 ; s. c. 6 Am. Dec. 346 ; Mapes v. Weeks, 4 Wend. 659; Inman v. Foster, 8 Wend. 602; Hotchkiss u. Oliphant, 2 Hill, 510 ; Gates V. Kellogg, 9 Ind. 506; Fowler v. Chi- chester, 26 Ohio St. 9; Cnmroerford v. McAvoy, 15 111. 311. " Andres v. Wells, 7 Johns. 260: s.c. 5 Am. Dec. 257 ; HufE v. Bennett, 4 Sandf. 120; s. c. 6 N. Y. 337; Marten State v. Allen, 1 Mc- Cord, 525; State v. Jay, 34 N. J. 368, 370. The Constitution of Pennsylvania de- clares that " in all indictments for Ubels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases." In Pit- tock V. O'Neill, 63 Pa. St. 256 ; s. c. 3 Am. Rep. 544, Skarswood, J., says; "There can be no doubt that both in criminal and civil cases the court may express to the jury their opinion as to whether the publication is libellous. The difference is that in criminal cases they are not bound to do so, and if they do, their opinion is not binding on the jury, who may give a general verdict in oppo- sition to it ; and if that verdict is for the defendant; a new trial cannot be granted against his consent. As our declaration of rights succinctly expresses it, the jury have the right to determine the law and the facts in indictments for libel, as in other cases. But in civil cases the judge is bound to instruct the jury as to whether the publication is libellous, supposing the innuendoes to be true ; and if that in- struction is disregarded, the verdict will be set aside as contrary to law. In Eng- land, the courts have recently disregarded, to some extent, this plain distinction be- tween criminal and civil proceedings. It appears to be put upon the ground that Mr. Fox's act, though limited in terms to indictments and informations,was declara- tory of the law in all cases of libel ; upon what principle of construction, however, it is not very easy to understand. It is there the approved practice for the judge in civil actions, after explaining to the jury the legal definition of a libel, to leave to them the question whether the publication upon which the action is founded falls within that definition. Fol- kard's Stark. 202 ; Baylis v. Lawrence, 11 A. & E. 920 i Parmiter v. Coupland, 6 M. & W. 105 ; Campbell ». Spottiswoode, 3 B. & S. 781 ; Cox V. Lee, L. E. 4 Exch. 284. These cases were followed in Sliattuck V. Allen, 4 Gray, 540. Yet it is clearly held that a verdict for the defendant upon that issue will be set aside, and a new trial granted. Hakewell :;. Ingram, 28 Eng. Law & Eq. 413. ' Though in crim- inal proceedings for libel,' says Jarvis, Ch. J., ' there may be no review, in civil matters there are cases in which verdicts for the defendant are set aside upon the ground that the matter was a libel, though the jury found it was not.' This must be conceded to be an anomaly ; and it will be best to avoid a practice which leads to such a result. The law, indeed, may be considered as settled in this State by long practice, never questioned, but incidentally confirmed in McConkle v. Binns, 6 Binn. 340 ; and Hays v. Brierly, 4 Watts, 392. It was held in the case last cited that where words of a dubious import are used, the plaintiff has a right to aver their meaning by innuendo, and the truth of such innuendo is for the jury. In New York, since the recent English cases, the question has been ably dis- cussed and fully considered in Snyder v. Andrews, 6 Barb. 43 ; Green v. Telfair, 20 Barb. 11 ; Hunt v. Bennett, 19 N. Y. 173; and the law established on its old foundations." Under like provisions in Tennessee, it is held no error to charge that, if the jury finds certain things true, the publication is prima facie libellous. Banner Pub. Co. v. State, 16 Lea, 176. Although the jury are judges of the law and facts, it is held that the court should declare tlie law, as in other cases. State V. Syphrett, 27 S. 0. 29. 1 Foss V. Hildreth, 10 Allen, 76. See ante, p. 521. CH. XII.] LIBERTY OF SPEECH AND 0! THE PEESS. 569 greater if the injurious charges were true, as a man would be more likely to commit a breach of the peace when the matters alleged against him were true than if they were false, in which latter case he might, perhaps, afford to treat them with contempt.^ Hence arose the common maxim, " The greater the truth, the greater the libel," which subjected the law on this subject to a great deal of ridicule and contempt. The constitutional provi- sions we have quoted generally make the truth a defence if pub- lished with good motives and for justifiable ends. Precisely what showing shall establish good motives and justifiable occasion must be settled by future decisions. In one case the suggestion was thrown out that proof of the truth of the charge alone might be sufficient,^ but this was not an authoritative decision, and it could not be true in any case where the matter published was not fit to be spread before tho public, whether true or false. It must be held, we think, that where the defendant justifies in a criminal prosecution, the burden is upon him to prove, not only the truth of the charge, but also the " good motives and justifiable ends " of the publication. These might appear from the very character of the publication itself, if it was true; as where it exhibited the misconduct or unfitness of a candidate for public office ; but where it related to a person in private life, and who was himself taking lio such action as should put his character in issue before the public, some further showing would generally be requisite after the truth had been proved.^ 1 State V. Lehre, 2 Brev. 446 ; s. o. 4 3 B. & C. 556, 585. See Moore ». Stephen- Am. Dec. 596. son, 27 Conn. 14. 2 Charge of Judge Betts to the jury in ' In Commonwealth v. Bonner, 9 Met. King V. Root, 4 Wend. 121 : " Should the 410, the defendant was indicted for a scope of proofs and circumstances lead libel on one Oliver Brown, in the fol- you to believe the defendants had no lowing words : " However, there were a good end in contemplation, that they few who, according to the old toper's were instigated to these charges solely 4'<"'°°*''y' ^^''^ drunk ; yea, in all con- to avenge personal and political resent- science, drunk as a drunken man ; and ments against the plaintiff, still, if they who and which of you desperadoes of have satisfactorily shown the charges to the town got them so ? Was it you be true, they must be acquitted of all lia- whose groggery was open, and the rat bility to damages in a private action on soup measured out at your bar to drunk- account of the publication. Indeed, if ards, while a daughter lay a corpse in good motives and justifiable ends must your house, and even on the day she was be shown, they might well be implied laid in her cold and silent grave, a victim from the establishment of the truth of a of God's chastening rod upon your guilty charge, for the like reason that malice is drunkard-manufacturing head? Was it inferred from its falsity." Malice, it is you who refused to close your drunkery said by AbboU, Ch. J., is alleged m the on the day that your aged father was declaration "rather to exclude the suppo- laid in the narrow house appointed for sition that the publication may have been all the living, and which must ere long made on some innocent occasion than for receive your recreant carcass ■? We ask any other purpose." Duncan i. Thwaites, again. Was it you ■! Was it you?" On 570 CONSTITUTIONAL LIMITATIONS. [CH. XIL the trial the defendant introduced evi- dence to prove, and contended that he did prove, all the facts alleged in his pub- lication. The court cliarged the jury that the burden was upon the defendant to show that the matter charged to be libellous was published with good mo- tives and for justifiable ends; that mal- ice is the wilful doing of an unlawful act, and does not necessarily imply personal ill-will towards the person libelled. The defendant excepted to the ruling of the court as applied to the facts proved, con- tending that, having proved the truth of all the facts alleged in the libel, and the pubUcation being in reference to an ille- gal trafiic, a public nuisance, the jury should have been instructed that it was incumbent on the government to show that defendant's motives were malicious, in the popular sense of the word, as re- spects said Brown. By the court, Shaw, Ch.. J. ; " The court are of opinion that the charge of the judge of the Common Pleas was strictly correct. If the pub-' lication be libellous, that is, be such as to bring the person libelled into hatred, con- tempt, and ridicule amongst the people, malice is presumed from the injurious act. But by Rev. Stat. c. 133, § 6, 'in every prosecution for writing or publish- ing a libel, the defendant may give in evidence, in his defence upon the trial, the truth of the matter contained in the pubUcation charged as libellous : pro- vided, that such evidence shall not be deemed a sufficient justification, unless it shall be further made to appear, on the trial, that the matter charged to be libellous was published with good mo- tives and for justifiable ends.' Nothing can be more explicit. The judge, there- fore, was right in directing the jury that, after the publication had been shown to have- been made by the defendant, and to be libellous and malicious, the burdeu was on the defendant, not only to prove the truth of the matter charged as libet lous, but likewise that it was published with good motives and for justifiable ends. We are also satisfied that the judge was right in his description or definition of legal malice, that it is not malice in its popular sense ; viz., that of hatred and ill-will to the party libelled, but an act done wilfuUy, unlawfully, and in violation of the just rights of another." And yet it would seem as if, conceding the facts published to be true, the jury ought to have found the occasion a proper one for correcting such indecent conduct by public exposure. See further on this subject, Regina v. Newman, 1 El. & BI. 268 and 558 ; s. c. 18 Eng. L. & Eq., 113 ; Barthelemy v. People, 2 Hill, 248 ; State V. White, 7 Ired. 180 ; State v. Burnham, 9 N. H. 34 ; Cole v. Wilson, 18 B. Monr. 212 ; Hagan v. Hendry, 18 Md. 177 ; Brad- ley V. Heath, 12 Pick. 163 ; s. c. 22 Ara. Dec. 418 ; Snyder v. Fulton, 34 Md. 128 ; s. c. 6 Am. Rep. 614 ; Commonwealth v. Snelling, 15 Pick. 337. The fact that the publication is copied from another source is clearly no protection, if it is not true in fact. Regina v. Newman, ubi sup. Com- pare Saunders v. Mills, 6 Bing. 213 ; Cree- vy V. Carr, 7 C. & P. 64; Sullings v. Shakespeare, 46 Mich. 408. Neither are the motives or good character of the de- fendant, if he has published libellous mat- ter which is false. Barthelemy v. People, 2 Hill, 248 ; Commonwealth v. Snelling, 15 Pick. 337 ; Wilson v. Noonan, 27 Wis. 598. Where the truth is relied upon as a defence, the charge should appear to be true as made. Whittemore v. Weiss, 33 Mich. 348; Palmer v. Smith, 21 Minn. 419. CH. Xm.] OF RELIGIOUS LIBERTY. 571 CHAPTER XIII. OP RELIGIOUS LIBERTY. A CAREFUL examination of the American constitutions will disclose the fact that nothing is more fully set forth or more plainly expressed than the determination of their authors to pre- serve and perpetuate religious liberty, and to guard against the slightest approach towards the establishment of an inequality in the civil and political rights of citizens, which shall have for its basis only their differences of religious belief. The American people came to the work of framing their fundamental laws after centuries of religious oppression and persecution, sometimes by one party or sect and sometimes by another, had taught them the utter futility of all attempts to propagate religious opinions by the rewards, penalties, or terrors of human laws. They could not fail to perceive, also, that a union of Church and State, like that which existed in England, if not wholly impracticable in America, was certainly opposed to the spirit of our institutions, and that any domineering of one sect over another was repressing to the energies of the people, and must necessarily tend ^o dis- content and disorder. Whatever, therefore, may have beeii their individual sentiments upon religious questions, or upon the pro- priety of the State assuming supervision and control of religious affairs under other circumstances, the general voice has been, that persons of every religious persuasion should be made equal before the law, and that questions of I'eligious belief and reli- gious worship should be questions between each individual man and his Maker. Of these questions human tribunals, so long as the public order is not disturbed, are not to take cognizance, except as the individual, by his voluntary action in associating himself with a religious organization, may have conferred upon such organization a jurisdiction over him in ecclesiastical matters.^ 1 The religious societies which exist in which permit the voluntary incorpora- Araerica are mere voluntary societies, tion of attendants upon religious worship, having little resemblance to those which with power in the corporation to hold constitute a part of the machinery of gov- real and personal estate for the purposes ernment in England. They are for the of their organization, but not for other most part formed under general laws, purposes. Such a society is " a volun- 572 CONSTITUTIONAL LIMITATIONS. [CH. XIIL These constitutions, therefore, have not established religious tol- eration merely, but religious equality; in that particular being tary assouiation of individuals or families, united for the purpose of having a com- mon place of worship, and to provide a proper teacher to instruct them in religi- ous doctrines and duties, and to adminis- ter the ordinances of baptism, &c. Al- though a church or body of professing Christians is almost uniformly connected with such a society or congregation, the members of the church have no other or greater rights than any other members of the society who statedly attend with them for the purposes of divine worship. Over the church, as such, the legal or temporal tribunals of the State do not profess to have any jurisdiction what- ever, except so far as is necessary to protect the civil rights of others, and to preserve the public peace. All questions relating to the faith and practice of the church and its members belong to the church judicatories, to which they have voluntarily subjected themselves. But, as a general principle, those ecclesiastical judicatories cannot interfere with the temporal concerns of the congregation or society with which the church or the members thereof are connected." Wal- loarth, Chancellor, in Baptist Church u. "Wetherell, 3 Paige, 296, 301 ; s. c. 24 Am. Dec. 223. See Ferraria v. Vasconcellos> 31 111. 25; Lawyer v. Cipperly, 7 Paige, 281; Shannon v. Frost, 3 B. Monr. 253; German, &c. Cong. v. Pressler, 17 La. Ann. 127 ; Sohier ». Trinity Church, 109 Mass. 1 ; Calkins v. Cheney, 92 111. 463. Equity will not determine questions of faith, doctrine, and schism unless neces- sarily involved in the enforcement of ascertained trusts. Fadness v. Braun- borg, 78 Wis. 257. Such a corpora- : tion is not an ecclesiastical, but merely a private civil corporation, the mem- bers of the society being the corpor- ators, and the trustees the managing . officers, with such powers as the statute confers, and the ordinary discretionary powers of officers in civil corporations. Robertson ». Bullions, 11 N. Y. 243; Miller v. Gable, 2 Denio, 492. Compare Watson V. Jones, 13 Wall. 679. The church connected with the society, if any there be, is not recognised in the law as a distinct entity; the corporators in the society are not necessarily members thereof, and tlie society may change its government, faith, tbrm of worship, dis- cipline, an4 ecclesiastical relations at will, subject only to the restraints imposed by their articles of association, and to the general laws of the State. Keyser v. Stansifer, 6 Ohio, 363 ; Robertson v. Bullions, 11 N. Y. 243 ; Parish of Bellport V. looker, 29 Barb. 266 ; s. c. 21 N. Y. 267 ; Burrel v. Associated Reform Church, 44 Barb. 282 ; O'Hara u. Stack, 90 Pa. St. 477; Warner v. Bowdoin Sq. Bapt. Soc, 148 Mass. 400. In New Hamp- shire, the signers of the articles of asso- ciation and not the pew-owners are the corporators. Trinitarian Cong. Soc. v. Union Cong. Soc. 61 N. H. 384. See also Holt V. Downs, 58 N. H. 170. An action will not lie against an incorporated ecclesiastical society for the wrongful expulsion of a member by the church. Hardin v. Baptist Church, 61 Mich. 137 ; Sale V. First Baptist Ch., 62 Iowa, 26. The courts of the State have no general juris- diction and control over the officers of such corporations in respect to the per- formance of their official duties ; but as in respect to the property which they hold for the corporation they stand in posi- tion of trustees, the courts may exercise the same supervision as in other cases of trust. Ferraria v. Vasconcellos, 31 111. 25 ; Smith v. Nelson, 18 Vt. 511 ; Watson V. Avery, 2 Bush, 332 ; Watson v. Jones, 13 Wall. 679 ; Hale v. Everett, 63 N. H. 9; Boxwell v. Affleck, 79 Va. 402; First Eef. Pres. Ch. v. Bowden, 14 Abb. N. C. 356. Where a bishop holds prop- erty in trust, upon his insolvency courts will prevent the diversion of the property to his creditors. Mannix v. Purcell, 19 N. E. Rep. 672 (Ohio). But the courts will interfere where abuse of trust is alleged, only in clear cases, especially if the abuse alleged be a departure from the tenets of the founders of a charity. Happy V. Morton, 33 III. 398. See Hale V. Everett, 63 N. H. 9. It is competent to form such societies on the basis of a community of property. Scribner v. Rapp, 6 Watts, 311 ; s. c. 30 Am. Dec. 327 ; Gass v. Wilhite, 2 Dana, 170 ; s. o. 26 Am. Deo. 446; Waite v. Merrill, 4 CH. xiii] OF EELIGIOUS LIBEETY, 573 far in advance not only of the mother country, but also of much of the colonial legislation, which, though more liberal than that Me. 102 ; s. c. 16 Am. Dec. 238. The articles of association will determine who may vote when the State law does not prescribe qualifications. State v. Crow- ell, 9 N. J. 891. Should there be a dis- ruption of the society, the title to the property will remain with that part of it which is acting in harmony with its own law ; seceders will be entitled to no part of it. McGinnis v. Watson, 41 Pa. St. 9; M. E. Church v. Wood, 6 Ohio, 283; Keyser v. Stansifer, 6 Ohio, 363 ; Shan- non V. X^ost, 3 B. Monr. 253 ; Gibson ti. Armstrong, 7 B. Monr. 481 ; Hadden v. Chorn, 8 B. Monr. 70 ; Ferraria v. Vas- concellos, 23 111. 456 ; Fernstler v. Siebert, 114 Fa. St. 196; Dressen v. Brameier, 56 Iowa, 756. And this even though there may have been a change in doctrine on the part of the controlling majority. Eeyser v. Stansifer, 6 Ohio, 868. See Petty V. Tooker, 21 N. Y. 267 ; Horton v. Baptist Church, 34 Vt. 809 ; Eggleston v. Doolittle, 33 Conn. 896; Miller v. English, 21 N. J. 317 ; NiccoUs v. Rugg, 47 111. 47; Kinkead :;. McKee, 9 Bush, 535 ; Baker V. Ducker, 79 Cal. 365. Whichever body the ecclesiastical authorities rec- ognize as the church, whether it con- tains a majority of members or not, is entitled to the property. Gaff v. Greer, 88Ind. 122 ; White Lick Meeting u. White Lick Meeting, 89 Ind. 136. Peculiar rights sometimes arise on a division of a society ; as to which we can only refer to Reformed Church v. Schoolcraft, 65 N. Y. 134; Kinkead v. McKee, 9 Bush, 535; NiccoUs «. Rugg, 47 111. 47; Smith V. Swormstedt, 16 How. 288; Henry v. Deitrich, 84 Pa. St. 286. The adminis- tration of church rules or discipline the courts of the State do not interfere with, unless civil riglits become involved, and then only for the protection of such rights. Hendrickson v. Decow, 1 N. J. Eq. 577; Harmon o. Dreher, Speers Eq. 87 ; DiefEendorf v. Ref. Cal. Church, 20 Johns. 12 i Wilson v. Johns Island Church, 2 Rich. Eq. 192 ; Den v. Bolton, 12 N. J. 206 ; Baptist Church y. Wetherell, 3 Paige, 801; German Reformed Church v. Sei- bert, 3 Pa. St. 282 ; State v. Farris, 45 Mo. 183 ; McGinnis v. Watson, 41 Pa. St. 9; Watson v. Jones, 13 Wall. 679 j Chase V. Cheney, 58 111. 509 ; Calkins v. Cheney, 92 111. 463 ; Gartin v. Penick, 5 Bush, 110 ; Lucas V. Case, 9 Bush, 297 ; People v. German, .&c. Church, 53 N. Y. 103; Gros- venor v. United Society, 118 Mass. 78; State V. Hebrew Congregation, 30 La. Ann. 205 ; s. o. 88 Am. Rep. 217 ; State ti. Bibb St. Ch., 84 Ala. 23 ; Livingston V. Rector, &e., 45 N. J. L. 230 ; Richard- son V. Union Cong. Soc, 58 N. H. 187 ; Matter of First Pres. Soc, 106 N. Y. 251; Fadness a. Braunborg, 73 Wis. 257. Decision of church tribunal as to the election of a deacon is conclusive. Atty.-Gen. v. Geerlings, 65 Mich. 662. But trustees may be prevented by the courts from continuing to employ a min- ister who has been deposed : Isham v. FuUager, 14 Abb. N. C. 363 ; see Hatchett V. Mt. Pleasant Ch., 46 Ark. 291 ; from closing a church building : Isham v. Trus- tees, 63 How. Pr. 465 ; and may be com- pelled to open it to a regularly assigned pastor. People v. Conley, 42 Hun, 98 ; Whitecar v. Michenor, 37 N. J. Eq. 6. In a congregationally governed church a minority of officers may be enjoined from putting in an organ against the wish of the majority of tlie officers and members : Hackney v. Vawter, 39 Kan. 616 ; and a minority of members from excluding the majority from using the church. Bates V. Houston, 66 Ga. 198. But an excom- munication will not be allowed to affect civil rights. Fitzgerald v. Robinson, 112 Mass. 871. As to the nature and effect of the contract between the society and the minister, see Avery v. Tyringham, 3 Mass. 160 ; 8. c. 3 Am. Dec. 105 and note ; Perry v. Wheeler, 12 Bush, 641; East Norway Lake Ch. v, Froislie, 37 Minn. 447; Downs v. Bowdoin Sq. Bapt. Soc, 149 Mass. 185 ; West v. First Pres. Ch., 42 N. W. Rep. 922 (Minn.). Under New York statute unless a minister's salary is fixed in a certain way the church is not liable. Landers v. Frank St. M. E. Ch., '97 N. Y. 119. The civil courts may in- tervene as to a breach of contract for salary. Bird v. St. Mark's Church, 62 Iowa, 567. As to what is extra vires for such a society, see Harriman v. Baptist Church, 63 Ga. 186; B. o. 86 Am. Bep. 117. 574 CONSTITUTIONAL LIMITATIONS. [cH. xm. of other civilized countries, nevertheless exhibited features of discrimination based upon religious beliefs or professions.^ Considerable differences will appear in the provisions in the State constitutions on the general subject of the present chapter ; some of them being confined to declarations and prohibitions whose purpose is to secure the most perfect equality before, the law of all shades of religious belief, while some exhibit a jealousy of ecclesiastical authority by making persons who exercise the functions of clergyman, priest, or teacher of any religious per- suasion, society, or sect, ineligible to civil oflfice ; ^ and still others show some traces of the old notion, that truth and a sense of duty do not consort with scepticism in religion.^ There are excep- 1 For the distinction between religious toleration and religious equality, see Bloom V. Richards, 2 Ohio St. 889 ; Hale V. Everett, 58 N. H. 1. And see Madison's views, in his Life by Rives, Vol. I. p. 140. It was not easy, two centuries ago, to make men educated in the ideas of those days understand how there could be com- plete religious liberty, and at the same time order and due subordination to au- thority in the State. " Coleridge said that toleration was impossible until in- difference made it worthless." Lowell, "Among my Books," 336. Roger Wil- liams explained and defended his own views, and illustrated the subject thus: "There goes many a ship to sea, with many hundred souls in one ship, whose weal and woe is common, and is a true picture of a commonwealth, or human combination or society. It hath fallen out sometimes that both Papists and Pro- testants, Jews and Turks, may be em- barked in one ship ; upon which supposal I affirm that all the liberty of conscience I ever pleaded for turns upon these two hinges : that none of the Papists, Protes- tants, Jews, or Turks be forced to come to the ship's prayers or worship if they practise any. I further add that I never denied that, notwithstanding this liberty, the commander of this ship ought to com- mand the ship's course, yea, and also command that justice, peace, and sobriety be kept and practised, both among the seamen and all the passengers. If any of the seamen refuse to perform their ser- vice, or passengers to pay their freight ; if any refuse to help, in person or purse, towards the common charges or defence ; if any refuse to obey the common laws and orders of the ship, concerning their common peace and preservation ; if any shall mutiny and rise up against their commanders and officers ; if any should preach or write that there ought to be no commanders or officers, because all are equal in Christ, therefore no masters nor officers, no laws nor orders, no corrections nor punishments; I say I never denied but in such cases, whatever is pretended, the commander or commanders may judge, resist, compel, and punish such trans- gressors according to their deserts and merits." Arnold's History of Rhode Island, Vol. I. p. 254, citing Enowles, 279, 280. There is nothing in the first amendment to the federal Constitution which can give protection to those who practise what is forbidden by the statute as criminal, e. g. bigamy, — on the pre- tence that their religion requires or sanc- tions it. Reynolds u. United States, 98 U. S. 145. * There are provisions to this effect, more or less broad, in the Constitutions of Tennessee, Delaware, Maryland, and Kentucky. ' ' The Constitution of Pennsylvania provides " that no person who 'acknowl- edges the being of God, and a future state of rewards and punisliments, shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth." Art. 1, § 4. — The Constitution of North Carolina : " The following classes of per- sons shall be disqualified for office: First: All persons who shall deny the existence of Almighty God," &c. Art. 6, § 5. — The Constitutions of Mississippi and South Carolina : " No person who denies CH. XIII.] OF RELIGIOUS LIBEETY. 575 tional clauses, however, though not many in number ; and it is believed that, where they exist, they are not often made use of to deprive any person of the civil or political rights or privileges which are placed by law within the reach of his fellows. Those things which are not lawful under any of the American constitutions may be stated thus : — 1. Any law respecting an establishment of religion. The le- gislatures have not been left at liberty to effect a union of Church and State, or to establish preferences by law in favor of any one religious persuasion or mode of worship. There is not complete religious liberty where any one sect is favored by the State and given an advantage by law over other sects.^ Whatever estab- the existence of the Supreme Being shall hold any office under this Constitution." — The Constitution of Tennessee": "No person who denies the being of a God, or a future state of rewards and punish- ments, shall hold any office in the civil department of this State." — On the other hand, the Constitutions of Georgia, Kan- sas, Virginia, West Virginia, Maine, Del- aware, Indiana, Iowa, Oregon, Ohio, New Jersey, Nebraska, Minnesota, Arkansas, Texas, Alabama, Missouri, Rhode Island, Nevada, and Wisconsin expressly forbid religious tests as a qualification for office or public trust. Very inconsistently the Constitutions of Mississippi and Tennes- see contain a similar prohibition. In the Constitutions of Alabama, Colorado, Georgia, Illinois, Iowa, Kentucky, Michi- gan; New Jersey, Rhode Island, and West Virginia, it is provided that no person shall be denied any civil or political right, privilege, or capacity on account of his religious opinions. — The Constitution of Maryland provides " that no religious test ought ever to be required as a quali- fication for any office of trust or profit in this State, other than a declaration of be- lief in the existence of God ; nor shall the legislature prescribe any other oath of of- fice than the oath prescribed by this con- stitution." Declaration of Rights, Art. 37. — The Constitution of Illinois provides that " the free exercise and enjoyment of religious profession and worship without discrimination shall forever be guaran- teed ; and no person shall be denied any civil or political right, privilege, or ca- pacity, on account of his religious opin- ions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or justify practices incon- sistent with the peace or safety of tlie State. No person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of wor- ship." Art. 2, § 3. — The Constitutions of California, Colorado, Connecticut, Florida, Georgia, Illinois, Maryland, Min- nesota, Mississippi, Missouri, Nevada, New York, and South Carolina contain provisions that liberty of conscience is not to justify licentiousness or practices inconsistent with the peace and moral safety of society. 1 A city ordinance is void which gives to one sect a privilege denied to others. Shreveport v. Levy, 26 La. Ann. 671. It is not unconstitutional to permit a school- house to be made use of for religious pur- poses when it is not wanted for schools. Nichols V. School Directors, 93 111. 61 ; 8. c. 34 Am. Rep. 160 ; Davis v. Boget, 60 Iowa, 11. But in Missouri it seems the school directors have no authority to permit such use. Dorlin v. Shearer, 67 Mo. 301. Under the Illinois Constitution of 1848 the legislature had no authority to take a private school-house, erected under the provisions of a will as a school- house and place of worship, and constitute it a school district, and provide for the election of trustees, and invest them with taxing power for the support of a school therein. People t». McAdams, 82 111. 356. But the basement of a churcli may be used for a school, and teachers of one sect employed. And if religious instruction is given daily, though not required by the 576 CONSTITUTIONAL LIMITATIONS. [CH. XIII. lishes a distinction against one class or sect is, to the extent to which the distinction operates unfavorably, a persecution ; and if based on religious grounds, a religious persecution. The extent of the discrimination is not material to the principle ; it is enough that it creates an inequality of right or privilege. 2. Compulsory support, by taxation or otherwise, of religious instruction. Not only is no one denomination to be favored at the expense of the rest, but all support of religious instruction must be entirely voluntary. It is not within the sphere of gov- ernment to coerce it.^ 3. Compulsory attendance upon religious worship. Whoever is not led by choice or a sense of duty to attend upon the ordi- nances of religion is not to be compelled to do so by the State. It is the province of the State to enforce, so far as it may be found practicable, the obligations and duties which the citizen may be under or may owe to his fellow-citizen or to society ; but those which spring from the relations between himself and his Maker are to be enforced by the admonitions of the conscience, and not by the penalties of human laws. Indeed, as all real worship must essentially and necessarily consist in the free-will offering of adoration and gratitude by the creature to the Creator, human laws are obviously inadequate to incite or compel those internal and voluntary emotions which shall induce it, and human penalties at most could only enforce the observance of idle cere- monies, which, when unwillingly performed, are alike valueless to the participants and devoid of all the elements of true worship. 4. Restraints upon the free exercise of religion according to the dictates of the conscience. No external authority is to place itself between the finite being and the Infinite when the former is seeking to render the homage that is due, and in a mode which commends itself to his conscience and judgment as being suitable for him to render, and acceptable to its object.^ authorities, a taxpayer cannot liave equi- meaning of Protestant, see Hale v. Ever- table relief. Millard v. Board of Educa- ett, 63 N. H. 1. The attempt to amend tion, 121 111. 297. the above provision by striking out the 1 We must exempt from this the State word "Protestant" was made in 1876, of New Hampshire, whose constitution but failed, though at the same time the permits the legislature to authorize " the acceptance of the Protestant religion as a several towns, parishes, bodies corporate, test for office was abolished, and the ap- or religious societies within this State to plication of moneys raised by taxation to make adequate provisions, at their own the support of denominational schools expense, for the support and maintenance was prohibited. of public Protestant teachers of piety, re- ^ This guaranty does not prevent ligion, and morality ; " but not to tax adopting reasonable rules for the use of those of other sects or denominations for streets, and forbidding playing therein their support. Part 1, Art. 6. As to on an instrument, though it be done as OH. XIII.] OP EELIGIOUS LIBERTY. 577 5. Kestraints upon the expression of religious belief. An earnest believer usually regards it as his duty to propagate his opinions, and to bring others to his views. To deprive him of this right is to take from him the power to perform what he considers a most sacred obligation. These are the prohibitions which in some form of words are to be found in the American constitutions, and which secure free- dom of conscience and of religious worship.^ No man in religious matters is to be subjected to the censorship of the State or of any public authority ; and the State is not to inquire into or take notice of religious belief, when the citizen performs his duty to the State and to his fellows, and is guilty of no breach of public morals or public decorum.^ an act of worship. Com. v. Plaisted, 148 Mass. 874; State i<. White, 64 N. H. 48. 1 This whole subject was considered very largely in the case of Minor v. The Board of Education, in the Superior Court of Cincinnati, involving the right of the school board of that city to exclude the reading of the Bible from the public schools. The case was reported and pub- lished by Robert Clarke & Co., Cincinnati, under the title, "The Bible in the Public Schools," 1870. The point of the case may be briefly stated. The constitution of the State, after various provisions for 'the protection of religious liberty, con- tained this clause : " Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the General Assembly to pass suitable laws to protect every religious denominar tion in the peaceable enjoyment of its own mode of public worship, and to en- courage schools and the means of instruc- tion." There being no legislation on the subject, except such as conferred large discretionary power on the Board of Edu- cation in the management of schools, that body passed a resolution, "that re- ligious instruction and the reading of religious books, including the Holy Bible, are prohibited in the Common Schools of Cincinnati ; it being the true object and intent of this rule to allow the children of the parents of all sects and opinions, in matters of faith and worship, to enjoy filike the benefit of the Common School fund." Certain taxpayers and citizens of said city, on the pretence that this ac- tion was against public policy and mo- rality, and in violation of the spirit and intent of the provision in the constitution which has been quoted, filed their com- plaint in the Superior Court, praying that the board be enjoined from enforcing said resolution. The Superior Court made an order granting the prayer of the complaint : but the Supreme Court, on appeal, reversed it, holding that the pro- vision in the constitution requiring the passage of suitable laws to encourage morality and religion was one addressed solely to the judgment and discretion of the legislative department ; and that, in the absence of any legislation on the sub- ject, the Board of Education could not be compelled to permit the reading of the Bible in the schools. Board of Educa- tion V. Minor, 23 Ohio St. 211. On the other hand, it has been decided that the school authorities, in their discretion, may compel the reading of the Bible in schools by pupils, even though it be against the objection and protest of their parents. l)onahoe v. Richards, 38 ^e. 376 ; Spiller V. Woburn, 12 Allen, 127. 2 Congress is forbidden, by the first amendment to the Constitution of the United States, from making any law re- specting an establishment of religion, or prohibiting the free exercise thereof. Mr. Story says of this provision: "It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intoler- ance of sects, exemplified in our domestic, as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act up: on the subject The situation, too, gf the 87 578 CONSTITUTIONAL LIMITATIONS. [CH. XIIL But wliile thus careful to establish, protect, and defend reli- gious' freedom and equality, the American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind in- spires, and as seems meet and proper in finite and dependent beings. Whatever may be the shades of religious belief, all must acknowledge the fitness of recognizing in important human affkirs the superintending care and control of the great Governor of the Universe, and of acknowledging with thanksgiving His boundless favors, or bowing in contrition when visited with the penalties of His broken laws. No principle of constitutional law is violated when thanksgiving or fast days are appointed ; when chaplains are designated for the army and navy ; when legislative sessions are opened with prayer or the reading of the Scriptures, or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation for the support of State government. Undoubtedly the spirit of the constitution will require, in all these cases, that care be taken to avoid discrimina- tion in favor of or against any one religious denomination or sect ; but the power to do any of these things does not become uncon- stitutional simply because of its, susceptibility to abuse.^ This public recognition of religious worship, however, is not based entirely, perhaps not even mainly, upon a sense of what is due to the Supreme Being himself as the author of all good and of all law ; but the same reasons of State policy which induce the gov- * ernment to aid institutions of charity and seminaries of instruc- tion, will incline it also to foster religious worship and religious institutions, as conservators of the public morals, and valuable, if different States equalljr proclaimed the religion, and a prohibition (as we have policy as well as the necessity of such seen) of all religious tests. Thus, the an exclusion. In some of the States, whole power over the subject of religion Episcopalians constituted the predom- is left exclusively to the State govern- inant sect; in others, Presbyterians; in ments, to be acted upon according to others, Congregationalists ; in others, their own sense of justice and the State Quakers ; and in others again there was constitutions ; and the Catholic and Pro- a close numerical rivalry among contend- testant, the Calvinist and the Arminian, ing sects. It was impossible that there the Jew and the infidel, may sit down at should not arise perpetual strife and per- the common table of the national coun- petual jealousy on the subject of ecclesi- ciU, without any inquisition into their astical ascendancy, if the national govern- faith or mode of worship." Story on the ment were left free to create a religious Constitution, § 1879 ; 1 Tuck. Bl. Com. establishment. The only security was in App. 296. For an examination of this extirpating the power. But this alone amendment, see Keynolds v. United would have been an imperfect security, if States, 98 U. S. 145. it had not been followed up by a declara- i See Trustees First M. E. Ch. v. At- tion of the right of the free exercise of lanta, 76 Ga. 181. CH. XIII.] OF RELIGIOUS LIBERTY. 579 not indispensable assistants in the preservation of the public order. Nor, while recognizing a superintending Providence, are we always precluded from recognizing also, in the rules prescribed for the conduct of the citizen, the notorious fact that the prevail- ing religion in the States is Christian. Some acts would be offensive to public sentiment in a Christian community, and would tend to public disorder, which in a Mahometan or Pagan country might be passed by without notice, or even be regarded as meritorious ; just as some things would be considered indecent, and worthy of reprobation and punishment as such, in one state of society, which in another would be in accord with, the prevail- ing customs, and therefore defended and protected by the laws. The criminal laws of every country are shaped in greater or less degree by the prevailing public sentiment as to what is right, proper, and decorous, or the reverse ; and they punish those acts as crimes which disturb the peace and order, or tend to shock the moral sense or sense of propriety and decency, of the community. The moral sense is largely regulated and controlled by the reli- gious belief ; and therefore it is that those things which, esti- mated by a Christian standard, are profane and blasphemous, are properly punished as crimes against society, since they are offensive in the highest degree to the general public sense, and have a direct tendency to undermine the moral support of the laws, and to corrupt the community. It is frequently said that Christianity is a part of the law of the land. In a certain sense and for certain purposes this is true. The best features of the common law, and especially those which regard the family and social relations ; which compel the parent to support the child, the husband to support the wife ; which make the marriage-tie permanent and forbid polygamy, — if not derived from, have at least been improved and strengthened by the prevailing religion and the teachings of its sacred Book. But the law does not attempt to enforce the precepts of Chris- tianity on the ground of their sacred character or divine origin. Some of those precepts, though we may admit their continual and universal obligation, we must nevertheless recognize as being incapable of enforcement by human laws. That standard of morality which requires one to love his neighbor as himself we must admit is too elevated to be accepted by human tribunals as the proper test by which to judge the conduct of the citizen ; and one could hardly be held responsible to the criminal laws if in goodness of heart and spontaneous charity he fell something short of the Good Samaritan, The precepts of Christianity, moreover. 580 CONSTITUTIONAL LIMITATIONS. [CH. XIIL affect the heart, and address themselves to the conscience ; while the laws of the State can regard the outward conduct only ; and for these several reasons Christianity is not a part of the law of the land in any sense which entitles the courts to take notice of and base their judgments upon it, except so far as they can find that its precepts and principles have been incorporated in and made a component part of the positive law of the State.^ Mr, Justice Story has said in the Girard Will case that, al- though Christianity is a part of the common law of the State, it is only so in this qualified sense, that its divine origin and truth are admitted, and therefore it is not to be maliciously and openly reviled and. blasphemed against, to the annoyance of believers or to the injury of the public.^ It may be doubted, however, if the punishment of blasphemy is based necessarily upon an admission of the divine origin or truth of the Christian religion, or incapable of being otherwise justified. Blasphemy has been defined as consisting in speaking evil of the Deity, with an impious purpose to derogate from the divine majesty, and to alienate the minds of others from the love and reverence of God. It is purposely using words concerning the Supreme Being calculated and designed to impair and destroy the reverence, respect, and confidence due to him, as the intelli- gent Creator, Governor, and Judge of the world. It embraces the idea of detraction as regards the character and attributes of God, as calumny usually carries the same idea when applied to an individual. It is a wilful and malicious attempt to lessen men's reverence of God, by denying his existence or his attributes as an intelligent Creator, Governor, and Judge of men, and to prevent their having confidence in him as such.^ Contumelious reproaches and profane ridicule of Christ or of the Holy Scriptures have the same evil effect in sapping the foundations of society and of public order, and are classed under the same head.* In an early case where a prosecution for blasphemy came before Lord Hale, he is reported to have said : " Such kind of wicked, 1 Andrews v. Bible Society, 4 Sandf . vania is given in 6 Webster's Works, 156, 182; Ayres i'. Methodist Church, 3 p. 175. Sandf. 351 ; State ». Chandler, 2 Harr. 553 ; » Shaw, Ch. J., in Commonwealth v. Bloom B. Richards, 2 Ohio St. 387 ; Board Kneeland, 20 Pick. 206, 213. of Education ». Minor, 23 Ohio St. 210. * People v. Ruggles, 8 Johns. 289; The subject is largely considered in Hale s. c. 5 Am. Dec. 335; Commonwealth v. V. Everett, 53 N. H. 1, 204 el seg., and Kneeland, 20 Pick. 206; Updegraph p. also by Dr. S. T. Spear in his book enti- Commonwealth, 11 S. & R. 394 ; State tied " Religion and the State." v. Chandler, 2 Harr. 553 ; Rex v. Wadding- 2 Vidal V. Girard's Ex'rs, 2 How. 127, ton, 1 B. & C. 26 ; Rex v. Carlile, 3 B. & 198. Mr. Webster's argument that Chris- Aid. 161 ; Cowan ». Milbourn, Law R. 2 tianity is a part of the law of Fennsyl- Exch. 230. CH. XIII.] OF EELIGIOUS LIBEKTY. 581 blasphemous words are not only an offence to God and religion, but a crime against the laws, State, and government, and there- fore punishable in the Court of King's Bench. For to say reli- gion is a cheat, is to subvert all those obligations whereby civil society is preserved; that Christianity is a part of the laws of- England, and to reproach the Christian religion is to speaii in subversion of the law."i Eminent judges in this country have adopted this language, and applied it to prosecutions for blas- phemy, where the charge consisted in malicious ridicule of the Author and Founder of the Christian religion. The early cases in New York and Massachusetts ^ are particularly marked by clearness and precision on this point, and Mr. Justice Clayton, of Delaware, has also adopted and followed the ruling of Lord Chief Justice Hale, with such explanations of the true basis and justifi- cation of these prosecutions as to give us a clear understanding of the maxim that Christianity is a part of the law of the landj as understood and applied by the courts in these cases.^ Taken with the explanation given, there is nothing in the maxim of which the believer in any creed, or the disbeliever of all, can justly complain. The language which the Christian regards as blasphemous, no man in sound mind can feel under a sense of duty to make use of under any circumstances, and no person is therefore deprived of a right when he is prohibited, under penalties, from uttering it. 1 The King v. Taylor, 3 Keb. 607, force those injunctions, any man could be Vent. 293. See also The King v. Wool- drawn to answer in a common-law court, ston, 2 Stra. 884, Fitzg. 64, Raym. 162, in It was a part of the common law, ' so far which the defendant was convicted of that any person reviling, subverting, or publishing libels, ridiculing the miracles ridiculing it, might be prosecuted at of Christ, his life and conversation, common law,' as Lord Mansfield has de- Ix>rd Ch. J. Raymond in that case says : clared ; because, in the judgment of our " I would have it taken notice of, that English ancestors and their judicial tri- we do not meddle with the difference of bunals, he who reviled, subverted, or rid- opinion, and that we interfere only where iculed Christianity, did an act which the root of Christianity is struck at." struck at the foundation of our civil 2 People V. Ruggles, 8 Johns. 289 ; society, and tended by its necessary con- s. c. 5 Am. Dec. 335 ; Commonwealth v. sequences to disturb that common peace Eneeland, 20 Pick. 206. See also Zeis- of the land of which (as Lord Coke liad weiss V. James, 63 Pa. St. 465, 471; Mc- reported) the common law was tlie pre- Ginnis w. Watson, 41 Pa. St. 9, 14. server. The common law . . . adapted 8 State 1). Chandler, 2 Harr. 553. The itself to the religion of the country just case is very full, clear, and instructive, so far as was necessary for the peace and and cites all the English and American safety of civil institutions ; but it took autliorities. The conclusion at which it cognizance of offences against God only, arrives is, that " Christianity was never when, by their inevitable effects, they be- considered a part of the common law, so came offences against man and his tem- far as that for a violation of its injunc- poral security." See also what is said tions independent of the established laws on this subject by Dner, J., in Andrew v. pf man, and without the sanction of any Bible Society, 4 Sandf. 166, 182. positive act of Parliament made to en- 582 CONSTITUTIONAL LIMITATIONS. [CH. XIII. But it does not follow, because blasphemy is punishable as a crime, that therefore one is not at liberty to dispute and argue against the truth of the Christian religion, or of any accepted dogma. Its " divine origin and truth " are not so far admitted in the law as to preclude their being controverted. To forbid dis- cussion on this subject, except by the various sects of believers, would be to abridge the liberty of speech and of the press in a point which, with many, would be regarded as most important of all. Blasphemy implies something more than a denial of any of the truths of religion, even of the highest and most vital. A bad motive must exist ; there must be a wilful and malicious attempt to lessen men's reverence for the Deity, or for the accepted reli- gion. But outside of such wilful and malicious attempt, there is a broad field for candid investigation and discussion, which is as much open to the Jew and the Mahometan as to the professors of the Christian faith. " No author or printer who fairly and con- scientiously promulgates the opinions with whose truths he is im- pressed, for the benefit of others, is answerable as a criminal. A malicious and mischievous intention is, in such a case, the broad boundary between right and wrong ; it is to be collected from the offensive levity, scurrilous and opprobrious language, and other circumstances, whether the act of the party was malicious." ^ Legal blasphemy implies that the words were uttered in a wanton manner, " with a wicked and malicious disposition, and not in a serious discussion upon any controverted point in religion." 2 The courts have always been careful, in administering the law, to say that they did not intend to include in blasphemj' disputes between learned men upon particular controverted points.^ The constitutional provisions for the protection of religious liberty not only include within their protecting power all sentiments and pro- fessions concerning or upon the subject of religion, but they guar- antee to every one a perfect i-ight to form and to promulgate such opinions and doctrines upon religious matters, and in relation to S 1 Updegraph v. Commonwealth, 11 S. translation and publication of the Mishna '& B. 394. In Ayrea v. Methodist Church, or the Talmud, and the Mahometan (if 3 Sandf . 351, 377, Duer, J., in speaking of in that collumes gentium to which this city " pious uses," says : " If the Presbyterian [New York], like ancient Rome, seems to and the Baptist, the Methodist and the be doomed, such shall be among us), the Protestant Episcopalian, must each be Mahometan his to the -assistance or relief allowed to devote the entire income of of the annual pilgrims to Mecca." his real and personal estate, forever, to ^ People v. Ruggles, 8 Johns. 289, the support of missions, or the spreading 293; s. c. 5 Am. Dec. 335, per Kent, Oh. of the Bible, so must the Roman Catholic J. his to the endowment of a monastery, or ' Rex v. Woolston, Stra. 834; Fitzg. the founding of a perpetual mass for the 64; People v. Ruggles, 8 Johns. 289; s. c. safety of his soul; the Jew his to the 5 Am. Dec. 335, per Kent, Ch. J. CH.' XIII.] OF RELIGIOUS LIBEETY. 583 the existence, power, attributes, and providence of a Supreme Being as to himself shall seem reasonable and correct. In doing this he acts under an awful responsibility, but it is not to any human tribunal.^ 1 Per Shaw, Ch. J., in Commonwealth V. Kneeland, 20 Pick. 206, 234. The lan- guage of the courts has perhaps not al- ways been as guarded as it should have been on this subject. In The King v. Waddington, 1 B. & C. 26, the defendant was on trial for blasphemous libel, in say- ing that Jesus Christ was an impostor, and a murderer in principle. One of the jurors asked the Lord Chief Justice {Ab- bott) whether a work which denied the di- vinity of the Saviour was a libel. The Lord Chief Justice replied that " a work speaking of Jesus Christ in the language used in the publication in question was a libel, Christia.nity being a part of the law of the land." This was doubtless true, as the wrong motive was apparent; but it did not answer the juror's question. On tnotion for a new trial, the remarks of Best, J., are open to a construction which answers the question in the affirmative : " My Lord Chief Justice reports to us that he tuld the jury that it was an in- dictable offence to speak of Jesus Christ in the manner that he is spoken of in the publication for which this defendant is indicted. It cannot admit of the least doubt that this direction was correct. The 53 Geo. III. c. 160, has made no alter- ation in the common law relative to libel. If, previous to the passing of that statute, it would have been a libel to deny, in any printed book, the divinity of the second person in the Trinity, the same publica- tion would be a libel now. The 53 Geo. III. c. 160, as its title expresses, is an act to relieve persons who impugn the doctrine of the Trinity from certain penalties. If we look at the body of the act to see from what penalties such persons are re- lieved, we find that they are the penal- ties from which the 1 W. & M. Sess., 1 c. 18, exempted all Protestant dissenters, except such as denied the Trinity, and the penalties or disabilities which the 9 & 10 W. III. imposed on those who denied the Trinity. The 1 W. & M. Sess. 1, c. 18, is, as it has been usually called, an act of toleration, or one which allows dis- senters to worship God in the mode that is agreeable to their religious opinions, and exempts them from punishment for non-attendance at the Kstablislied Church and non-conformity to its rites. The le- gislature, in passing that act, only thought of easing the consciences of dissenters, and not of allowing them to attempt, to weaken the faith of the members of 'the church. The 9 & 10 W. III. was to give security to the government by rendering men incapable of office, who entertained opinions hostile to the established reli- gion. The only penalty imposed by that statute is exclusion from office, and that penalty is incurred by any manifesta- tions of the dangerous opinion, without proof of intention in the person entertain- ing it, either to induce others to be of that opinion, or in any manner to disturb per- sons of a different persuasion. This Stat-* ute rested on the principle of the test laws, and did not interfere with the com- mon law relative to blasphemous libels. It is not necessary for me to say whether it be libellous to argue from the Scrip- tures against the divinity of Christ ; that is not what the defendant professes to do ; he argues against the divinity of Christ by denying the truth of the Scrip- tures. A work containing such argu- ments, published maliciously (which the jury in this case have found), is by the common law a libel, and the legislature has never altered this law, nor can it ever do so while the Christian religion is considered the basis of that law." It is a little diffi- cult, perhaps, to determine precisely how far this opinion was designed to go in holding that the law forbids the public denial of the truth of the Scripture^ That arguments against it, made in good , faith by those who do not accept it, are legitimate and rightful, we think there is no doubt ; and the learned judge doubt- less meant to admit as much when he required a malicious publication as an in- gredient in the offencp. However, when we are considering what is the common law of England and of this country as re- gards offences against God and religion, the existence of a State Church in that 584 CONSTITUTIONAL LIMITATIONS. [CH. XIIL Other formB of profanity, besides that of blasphemy, are also made punishable by statutes in the several States. The cases these statutes take notice of are of a character no one can justify, and their punishment involves no question of religious liberty. The right to use profane and indecent language is recognized by no religious creed, and the practice is reprobated by right-thinking men of every nation and every religious belief. The statutes for the punishment of public profanity require no further justification than the natural impulses of every man who believes in a Supreme Being, and recognizes his right to the reverence of his creatures. The laws against the desecration of the Christian Sabbath by labor or sports are not so readily defensible by arguments the force of which will be felt and admitted by all. It is no hardship to any one to compel him to abstain from public blasphemy or other profanity, and none can complain that his rights of con- science are invaded by this forced respect to a prevailing religious sentiment. But the Jew who is forced to respect the first day of the week, when his conscience requires of him the observance of the seventh also, may plausibly urge that the law discriminates ^against his religion, and by forcing him to keep a second Sabbath in each week, unjustly, though by indirection, punishes him for his belief. The laws which prohibit ordinary employments on Sunday are to be defended, either on the same grounds which justify the punishment of profanity, or as establishing sanitary regulations, based upon the demonstration of experience that one day's rest in seven is needful to recuperate the exhausted energies of body and mind. If sustained on the first ground, the view must be that such laws only. require the proper deference and regard which those not accepting the common belief may justly be required to pay to the public conscience. The Supreme Court of Pennsylvania have preferred to defend such legislation on the second ground rather than the first ; ^ but it appears to us that if the benefit to country and the effect of its recognition dictates of their own consciences ; it com- upon the law are circumstances to be pels none to attend, erect, or support any kept constantly in view. place of worship, or to maintain any min- In People v. Porter, 2 Park. Cr. R. 14, istry against his consent ; it pretends the defence of drunkenness was made to a not to control or to interfere with the prosecution for a blasphemous libel. Wal- rights of conscience, and it establishes no worth, Circuit Judge, presiding at the preference for any religious establish- trial, declared the intoxication of defend- ment or mode of worship. It treats no ant, at the time of uttering the words, religious doctrine as paramount in the to be an aggravation of the offence rather State; it enforces no unwilling attend- than an excuse. ance upon the celebration of divine wor- * " It intermeddles not with the nat- ship. It says not to Jew or Sabbatarian, ural and indefeasible right of all men to ' You shall desecrate the day you esteem worship Almighty God according to the as holy, and keep sacred to religion that CH. XIII.] OF EELIGIOUS LIBEETT. 585 the individual is alone to be considered, the argument against the law which he may make who has already observed the seventh day of the week, is unanswerable. But on the other ground it is clear that these laws are supportable on authority, notwithstanding the inconvenience which they occasion to those whose religious sentiments do not recognize the sacred character of the first day of the week.^ Whatever deference the constitution or the laws may require to be paid in some cases to the conscientious scruples or religious convictions of the majority, the general policy always is, to avoid with care any compulsion which infringes on the religious scruples of any, however little reason may seem to others to underlie them. Even in the important matter of bearing arms for the public de- fence, those who cannot in conscience take part are excused, and tee deem to be so.' It enters upon no discussion of rival claims of the first and seventh days of the week, nor pretends to bind upon the conscience of any man any conclusion upon a subject which each must decide for himself. It intrudes not into the domestic circle to dictate when, where, or to what god its inmates shall address their orisons; nor does it presume to enter the synagogue of the Israelite, or the churcli of the Seventh- day Christian, to command or even per- suade their attendance in the temples of those who especially approach the altar on Sunday. It does not in the slightest degree infringe upon the Sabbath of any sect, or curtail their freedom of worship. It detracts not one hour from any period of time they may feel bound to devote to this object, nor does it add a moment beyond what they may choose to employ. Its sole mission is to inculcate a tempo- rary weekly cessation from labot-, but it adds not to this requirement any religious obligation." Specht v. Commonwealth, 8 Pa. St. 312, 325. See also Charleston I'. Benjamin, 2 Strob. 508; Bloom v. Eichards, 2 Ohio St. 387 ; McGatrick v. Wason, 4 Ohio St. 566 ; Hudson v. Geary, 4 R. I. 485 ; Bohl v. State, 3 Tex. App. 683 ; Johnston v. Commonwealth, 22 Pa. St. 102 ; Commonwealth ». Nesbit, 34 Pa. St. 398 ; Commonwealth v. Has, 122 Mass. 40 ; Commonwealth v. Starr, 144 Mass. 359 ; State v. Bott, 31 La. Ann. 663 ; s. c. 33 Am. Rep. 224 ; State v. Judge, 39 La. Ann. 1.32 ; State v. Bait. & 0. R. R. Co., 15 W. Va. 362; s. o. 36 Am. Rep. 803. > Commonwealth v. Wolf, 3 S. & R. 48 ; Commonwealth v. Fisher, 17 S. & R. 160 ; Shover v. State, 7 Ark. 529 ; Scales V. State, 47 Ark. 476 ; Voglesong v. State, 9 Ind. 112; State v. Arabs, 20 Mo. 214; Cincinnati v. Rice, 15 Ohio, 225 ; Ex parte Koser, 60 Cal. 177 ; Parker v. State, 16 Lea, 476. A proviso in a Sunday law for the benefit of observers of Saturday is valid. Johns v. State, 78 Ind. 332. In Simonds's Ex'rs v. Gratz, 2 Pen. & Watts, 412, it was held that the conscientious scruples of a Jew to appear and attend a trial of his cause on Saturday were not sufficient cause for a continuance But gucere of this. In Froli'ckstein v. Mayor of Mobile, 40 Ala. 725, it was held that a statute or municipal ordinance prohibit- ing the sale of goods by merchants on Sunday, in its application to religious Jews " who believe that it is their reli- gious duty to abstain from work on Sat- urdays, and to work on all the other six days of the week," was not violative of the article in the State constitution which declares that no person shall, " upon any pretence whatsoever, be hurt, molested)' or restrained in his religious sentiments or persuasions." For decisions sustain- ing the prohibition of liquor sales on Sunday, see State v. Common Pleas, 36 N. J. 72 ; 8 c. 13 Am. Rep. 422 ; State v. Bott, 31 La. Ann. 663 ; 8. c. 33 Am. Rep. 224 ; State V. Gregory, 47 Conn. 276 ; Blahnt V. State, 34 Ark. 447 ; and of dramatic entertainments, see Menserdorff v.Dwyer, 69 N. Y. 557. 586 CONSTITUTIONAL LIMITATIONS. [CH. XIIL their proportion of this great and sometimes imperative burden is borne by the rest of the community.^ Some of the State constitutions have also done away with the distinction which existed at the common law regarding the admis- sibility of testimony in some cases. All religions were recognized by the law to the extent of allowing all persons to be sworn and to give evidence who believed in a superintending Providence, who rewards and punishes, and that an oath was binding on their conscience.^ But the want of such belief rendered the person incompetent. Wherever the common law remains unchanged, it must, we suppose, be held no violation of religious liberty to recognize and enforce its distinctions ; but the tendency is to do away with them entirely, or to allow one's unbelief to go to his credibility only, if. taken into account at all.^ 1 There are constitutional provisions to this effect more or less broad in Alabama, Arkansas, Colorado, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Missouri, New Hampshire, New York, North Carolina, Oregon, and South Carolina, and statutory provisions in some other States. In Tennessee " no citizen shall be compelled to bear arms, provided he will pay an equivalent to be ascertained by law." Art. 1, § 28. ^ See upon this point the leading case of Ormiehuiid u. Barker, Willes, 638, and I Smith's Leading Cases, 685, where will be found a full discussion of this subject. Some of the earlier American cases re- quired of a witness that he should be- lieve in the existence of God, and of a State of rewards and punishments after the present life. See especially Atwood V. Welton, 7 Conn. 66. But this rule did not generally obtain ; belief in a Supreme Being who would punish false swearing, whether in this world or in the world to come, being regarded sufficient. Cubbi- Bon V. McCreary, 7 W. & S. 262 ; Blocker 21. Burness, 2 Ala. 354 ; Jcmes v. Harris, 1 Strob. 160; Shaw v. Moore, 4 Jones {TS. C), 25; Hunscom v. Hunscom, 15 Mass. 184; Brock v. Milligan, 10 Ohio, 121 ; Bennett v. State, 1 Swan, 411 ; Cen- tral R. R. Co. V. Rockafellow, 17 111. 541 ; Arnold v. Arnold, 13 Vt. 362 ; Butts v. Swartwood, 2 Cow. 431 ; Free ti. Bucking- ham, 59 N. H. 219. But one who lacked this belief was not sworn, because there was no mode known to the law by which it was supposed an oath could be made binding upon his conscience. Arnold v. Arnold, 13 "Vt. 362 ; Scott v. Hooper, 14 Vl 535 : Norton v. Ladd, 4 N. H. 444 ; Cent. R. R. Co. v. Rockafellow, 17 HL 541. ' The States of Iowa, Minnesota, Michigan, Oregon, Wisconsin, Arkansas, Florida, Missouri, California, Indiana, Kansas, Nebraska, Nevada, Ohio, and New York have constitutional provisions expressly doing away with incompetency from want of religious belief. Perhaps the general provisions in some of the other constitutions declaring complete equality of civil rights, privileges, and capacities are sufficiently broad to ac- complish the same purpose. Perry's Case, a Gratt. 632. In Michigan and Oregon a witness is not to be questioned concerning his religious belief. See Peo- ple V. Jenness, 6 Mich. 305. In Georgia the code provides that religious belief shall oniy go to the credit of a witness, and it has been held Inadmissible to in- quire of a witness whether he believed in Christ as the Saviour. Donkle v. Kohn, 44 Ga. 266. In Maryland, no one is in- competent as a witness or juror " provided he believes in the existence of God, and that, under His dispensation, such per- son will be held morally accountable for his acts, and be rewarded or punished therefor, either in this world or the world to come." Const. Dec. of Rights, § 36. In Missouri an atheist is competent Londener v. Lichtenheim, 11 Mo. App. 385. CH. XIV.], THE POWER OF TAXATION. 587 CHAPTER XIV. • THE POWER OP TAXATION. The power to impose taxes is one so unlimited in force and so searching in extent, that the courts scarcely venture to declare that it is subject to any restrictions whatever, except such as rest in the discretion of the authority which exercises it. It reaches to every trade or occupation ; to every object of industry, use, or enjoyment ; to every species of possession ; and it imposes a bur- den which, in case of failure to discharge it, may be followed by seizure and sale or confiscation of property. No attribute of sovereignty is more pervading, and at no point does the power of the government affect more constantly and intimately all the re- lations of life than through the exactions made under it. Taxes are defined to be burdens or charges imposed by the legislative power upon persons or property, to raise money for public purposes.^ The power to tax rests upon necessity, and is inherent in every sovereignty. The legislature of every free State will possess it under the general grant of legislative power, whether particularly specified in the constitution among the pow- ers to be exercised by it or not. No constitutional government can exist without it, and no arbitrary government without regular and steady taxation could be anything but an oppressive and vexatious despotism, since the only alternative to taxation would be a forced extortion for the needs of government from such per- sons or objects as the men in power might select as victims. Chief Justice Marshall has said of this power : " The power of taxing the people and their property is essential to the very .existence of government, and may be legitimately exercised on the objects to 1 Blackwell on Tax Titles, 1. A tax der." Montesquieu, Spirit of the Laws, is a contribution imposed by government b. 12, C. 30. In its most enlarged sense on individuals for tlie service of the State, the word " taxes " embraces all the regular It is distinguished from a subsidy as being impositions made by government upon certain and orderly, which is shown in its the person, property, privileges, occupa- derivation from Greek, Tiifis, ordo, order tions, and enjoyments of the people for or arrangement. Jacob, Law Die. ; Bou- the purpose of raising public revenue, vier. Law Die. " The revenues of a State See Perry v. Washburn, 20 Cal. 318, 350 ; are a portion that each subject gives of Loan Association v. Topeka, 20 Wall. 655, Ills property in order to secure, or to have, 664 ; Van Horn ». People, 46 Mich. 183. the agreeable enjoyment of the remain- 588 CONSTITUTIONAL LIMITATIONS. [CH. XIV. which it is applicable to the utmost extent to which the govern- ment may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constit- uents. This is, in general, a sufficient security against erroneous and oppressive taxation. The people of a State, therefore, give to their governmejit a right of taxing themselves and their prop- erty ; and as the exigencies of the government cannot be limited, they prescribe no limits to the exercise of this right, resting con- fidently on the interest of the legislator, and on the influence of the constituents over their representative, to guard them against its abuse." ^ The same eminent judge has said in another case : " The power of legislation, and consequently of taxation, operates on all per- sons and property belonging to the body politic. This is an ori- ginal principle, which has its foundation in society itself. It is granted by all for the benefit of all. It resides in the govern- ment as part of itself, and need not be reserved where property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies. However absolute the right of an individual may be, it is still in the nature of that right that it must bear a portion of the public burdens, and tliat portion must be determined by the legislature. This vital power may be abused ; but the interest, wisdom, and justice of the representa- tive body, and its relations with its constituents, furnish the only security where there is no express contract against unjust and ex- cessive taxation, as well as against unwise legislation generally." 2 And again, the same judge says, it is " unfit for the judicial de- partment to inquire what degree of taxation is the legitimate use, and what degree may amount to the abuse, of the power." » The like general views have been frequently expressed in other cases.* The Constitution of the United States declares that " the Con- gress shall have power to levy and collect taxes, duties, imposts, and excises to pay the debts, and provide for the common defence and general welfare of the United States ; but all duties, imposts, 1 McCulloch V. Maryland, 4 Wheat. Sharpless v. Mayor, &c., 21 Pa. St. 316,428. ,147; Weister v. Hade, 52 Pa. St. 474; 2 Providence Bank v. Billings, 4 Pet. Wingate ». Sluder, 6 Jones (N. C), 552; 614. 561. Herrick v. Randolph, 13 Vt. 625 ; Ann- ' McCulloch V. Maryland, 4 Wheat, ington v. Barnet, 15 Vt. 745; Thomas v. 316, 430. See Kirtland v. Hotchkiss, 100 Leland, 24 Wend. 65 ; People t>. Mayor, U. S. 491; Board of Education w.McLands- &c. of Brooklyn, 4 N. Y. 419; Portland borough, 36 Ohio St. 227 ; State v. Board Bank v. Apthorp, 12 Mass. 252 ; Western of Education, 38 Ohio St. 3. Union Telegraph Co. v. Mayer, 28 Ohio * Kirby v. Shaw, 19 Pa. St. 258 ; St. 521. CH. XIV.] THE POWER OF TAXATION. 589 and excises shall be uniform throughout the United States." ^ The duties, imposts, and excises here specified are merely different kinds of taxes ; the first two terms being commonly applied to the levies made by governments on the importation and exporta- tion of commodities, while the term " excises " is applied to the taxes laid upon the manufacture, sale, or consumption of commodi- ties within the country, upon licenses to pursue certain occupations, and upon corporate privileges. " No tax or duty shall be laid on articles exported from any State ; " ^ but this provision of the Constitution is not violated by a requirement that an article in- tended for exportation shall be stamped, as a protection against fraud.8 Direct taxes, when laid by Congress, must be appor- tioned among the several States according to the representative population.* The term " direct taxes," as employed in the Consti- tution, has a technical meaning, and embraces capitation and land taxes only.^ These are express limitations, imposed by the Con- stitution upon the federal power to tax; but there are some others which are implied, and which under the complex system of American government have the effect to exempt some subjects otherwise taxable from the scope and reach, according to circum- stances, of either the federal power to tax or the power of the several States. One of the implied limitations is that which pre- cludes the States from taxing the agencies whereby the general government performs its functions. The reason is that, if they possessed this authority, it would be within their power to impose taxation to an extent that might cripple, if not wholly defeat, the operations of the national authority within its proper and consti- tutional sphere of action. " That the power to tax," says Chief Justice Marshall, " involves the power to destroy ; that the power to destroy may defeat and render useless the power to create ; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be ■ supreme over that which exerts the control, — are propositions not to be denied." And referring to the argument that confi- dence in the good faith of the State governments must forbid our indulging the anticipation of such consequences, he adds: "But all inconsistencies are to be reconciled by the magic of the word, confidence. Taxation, it is said, does not necessarily and un- avoidably destroy. To carry it to the excess of destruction would 1 Const. U. S. Art 1, § 8, cl. 1. ^ Hylton v. United States, 3 Dall. 171 « Const. U. S. Art. 1, § 9, cl. 5. Pacific Ins. Co. i>. Soule, 7 Wall. 433 8 Pace V. Burgess, 92 U. S. 372. Veazie Bank v. Fenno, 8 Wall. 538 « ConstU. S. Art. 1, § 2 ; Art. 1, § 9, cl. 4. Springer v. United States, 102 U. S. 586. 590 CONSTITUTIONAL LIMITATIONS. [CH. XIV. be an abuse, to presume wbich would banish that confidence which is essential to all government. But is this a case of confi- dence ? Would the people of any one State trust those of another with a power to control the most insignificant operations of their State government ? We know they would not. Why then should we suppose that the people of any one State should be willing to trust those of another with a power to control the operations of a government to which they have confided their most important and most valuable interests ? In the legislature of the Union alone are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of con- trolling measures which concern all, in the confidence that it will not be abused. This, then, is not a case of confidence." ^ It follows as a logical result from this doctrine that if the Con- gress of the Union may constitutionally create a Bank of the United States, as an agency of the national government in the accomplishment of its constitutional purposes, any power of the States to tax such bank, or its property, or the means of pep- forming its functions, unless with the consent of the United States, is precluded by necessary implication.^ For the like rea- 1 McCulloch 0. Maryland, 4 Wheat. 816, 431. The case involved the right of the State of Maryland to impose taxes upon the operations, within its limits, of the Bank of the United States, created by authority of Congress. " If," con- tinues the Chief Justice, " we apply the principle for which the State of Mary- land contends to the Constitution gener- ally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the States. The American people have declared their Constitution, and the laws made in pur- suance thereof, to be supreme ; but this principle would transfer the supremacy in fact to the States. If the States may tax one instrument employed by the gov- ernment in the execution of its powersy they may tax any and every other instru- ment. They may tax the mail ; they may tax the mint ; they may tax patent rights ; they may tax the papers of the custom-house ; they may tax judicial process ; they may tax all the means em- ployed by the government to an excess which would defeat all the ends of gov- ernment. This was not intended by the American people. They did not design to make their government dependent on the States." In Veazie Bank v. Fenno, 8 Wall. 533, followed and approved in National Bank v. United States, 101 U. S. 1, it was held competent for Con- gress, in aid of the circulation of the na- tional banks, to impose restraints upon the circulation of the State banks in the form of taxation. Perhaps no other case goes so far as this, in holding that taxa- tion may be imposed for other purposes than the raising of revenue, though the levy of duties upon imports with a view to incidental protection to domestic man- ufactures is upon a similar principle. * McCulloch V. Maryland, 4 Wheat, 316; Osborn v. United States Bank, 9 Wheat. 738 ; Dobbins i-. Commissioners of Erie Co., 16 Pet. 435. But the doc- trine which exempts theinstrumeutalities of the general government from the in- fluence of State taxation, being founded on the implied necessity for the use of such instruments by the government, such legislation as does not impair the usefulness or capability of such instru- ments to serve the government is not within the rule of prohibition. National Bank v. Commonwealth, 9 Wall. 353; Tliompson u. Pacific R. R. Co., 9 Wall. 579. CH. XIV.] THE POWER OF TAXATION. 591 sons a state is prohibited from taxing an officer of the general government for his office or its emoluments ; since such a tax, having the effect to reduce the compensation for the services pro- vided by the act of Congress, would to that extent conflict with such act, and tend to neutralize its purpose.^ So the States may not impose taxes upon the obligations or evidences of debt issued by the general government upon the loans made to it, unless such taxation is permitted by law of Congress, and then only in the manner such law shall prescribe, — any such tax being an impediment to the operations of the government in negotiating loans, and, in greater or less degree . in proportion to its magn,i- tude, tending to cripple and embarrass the national power.^ The tax upon the national securities is a tax upon the exercise of the power of Congress " to borrow money on the credit of the United States." The exercise of this power is interfered with to the ex- tent of the tax imposed under State authority ; and the liability of the certificates of stock or other securities to taxation by a State, in the hands of individuals, would necessarily affect their value in market, and therefore affect the free and unrestrained exercise of the power. " If the right to impose a tax exists, it i^ a right which, in its nature, acknowledges no limits. It may be carried to any extent within the jurisdiction of the State or cor- poration which imposes it, which the will of each State or corpo- ration may prescribe." ^ 1 Dobbins v. CommiasionerB of Erie Montgomery County v. Elston, 32 Ind. Co., 16 Pet. 4S5. On similar grounds it ia 27. Nor the premium on United States held in Canada that a provincial legisla- bonds. People v. Com'rs of Taxes, 90 N. ture has no power to impose a tax on the Y. 63. In People v. United States, 93 111. official income of an officer of the Domin- 30 ; s. c. 34 Am. Bep. 155, it was de- ion government. Leprohon v. Ottawa, cided tliat property of the United States, 40 U. C. Rep. 486; s. c. on appeal, 2 Ont. held for any purpose whatever, was not App. Hep. 552. subject to State taxation. Citing Mc- 2 "Weston V. Charleston, 2 Pet. 449 j Goon v. Scales, 9 Wall. 23 ; Railway Co. Bank of Commerce i-. New York City, 2 v. Prescott, 16 Wall. 603. Lands within Black, 620 ; Bank Tax Case, 2 Wall. 200 ; a State belonging to the United States by* Van Allen v. Assessors, 3 Wall. 573 ; purchase or failure of owner to pay direct People V. Commissioners, 4 Wall. 244; taxes are exempt from State taxation Bradley i-. People, 4 Wall. 459 ; The wliile so owned. Van Brocklin v. Ten- Banks V. The Mayor, 7 Wall. 16 ; Bank «. nessee, 117 U. S. 151. The Central Pacific Supervisors, 7 Wall. 26 ; State v. Rogers, & Southern Pacific Railroad Companies 79 Mo. 283. For a kindred doctrine see derive many of their franchises from the State V. Jackson, 33 N. J. 450. United States. These cannot be taxed * Weston V. Charleston, 2 Pet. 449, by a State without the consent of Con- 466; Bank of Commerce v. New York gress. California ». Central Pacific R.B. City, 2 Black, 620; Bank Tax Case, 2 Co., 127 U. S. 1. But land is taxable Wall. 200 ; Society for Sa,viDgs ». Coite, though the title Is still in the United 6 Wall. 594. Revenue stamps are not States, if the real owner is entitled taxable. Palfrey v. Boston, 101 Mass. to a patent. Wis. Centr. Ry. Co. v. 329. Nor United States treasury notes. Comstock, 71 Wis. 88. The property 592 CONSTITUTIOKAL LIMITATIONS. [CH. XIV. If the States cannot tax the means by which the national gov- ernment performs its functions, neither, on the other hand and for the same reasons, can the latter tax the agencies of the State government3. "The same supreme power which established the departments of the general government determined that the local governments should also exist for their own purposes, and made it impossible to protect the people in their common interests without them. Each of these several agencies is confined to its own sphere, and all are strictly subordinate to the constitution which limits them, and independent of other agencies, except as thereby made dependent. There is nothing in the Constitution [of the United States] which can be made to admit of any inter- ference by Congress with the secure existence of any State authority within its lawful bounds. And any such interference by the in- direct means of taxation is quite as much beyond the power of the national legislature as if the interference were direct and ex- treme." 1 It has therefore been held that the law of Congress requiring judicial process to be stamped could not constitutionally be applied to the process of the State courts ; since otherwise Congress might impose such restrictions upon the State courts as would put an end to their effective action, and be equivalent practically to abolishing them altogether.* And a similar ruling has been made in other analogous cases. of the Western Union Telegraph Co., a, government from taxing the means and New York corporation, lying in Massachu- instrumentalities of the States, nor is setts, cannot escape taxation there as there any prohibiting the States from an agency of the federal government, taxing the means and instrumentalities of although it has the right to use post roads, that government. In both cases the ex- W. U. Tel. Co. V. Massachusetts, 125 TJ. emption rests upon necessary implicationj S. 630. That taxation cannot be evaded and is Upheld by the great law of self- by turning funds temporarily into United preservation ; as any government, whose States notes just before the time for as- means employed in conducting its opera- sessraent, see Shotwell v. Moore, 129 U. tions, if subject to the cont'd of another S. 690. and distinct government, can only exist 1 Fifield V. Close, 15 Mich. 505. " In at the mercy of that government. Of respect to the reserved powers, the State what avail are these means if another is as sovereign and independent as the power may tax them at discretion'? " general government. And if the means Per Nelson, J., in Collector v. Day, 11 and instrumentalities employed by that Wall. 113, 124. See also Warfl v. Mary- government to carry into operation the land, 12 Wall. 418, 427 ; Railroad Co. v. powers granted to it are necessarily, and Peniston, 18 Wall. 5 , Freedman v. Sigel, for tlie sake of self preservation, exempt 10 Blatch. 327. from taxation by the States, why are not '■^ Warren v. Paul, 22 Ind. 276 ; Jones those of the States depending upon their «. Estate of Keep, 19 Wis. 369 ; Fifield reserved powers, for like reasons, equally k. Close. 15 Mich. 505; Union Bank v. exempt from federal taxation ? Their Hill, 3 Cold. S25 ; Smith v. Short, 40 Ala. unimpaired existence in the one case is as 385 ; Moore v. Quirk, 106 Mass. 49 ; s. c. essential as in the other. It is admitted 7 Am. Kep. 499. that there is no express provision in the It has been repeatedly decided that ■'Constitution that prohibits the general the act of Congress which provided that CH. XIV.] THE POWEK OF TAXATION. 593 Strong as is the language employed to characterize the taxing power in some of the cases which have considered this subject, subsequent events have demonstrated that it was by no means extravagant. An enormous national debt has not only made imposts necessary which in some cases reach several hundred per cent of the original cost of the articles upon which they are im- posed, but the systems of State banking which were in force when the necessity for contracting that debt first arose, have been liter- ally taxed out of existence by burdens avowedly imposed for that very purpose.^ If taxation is thus unlimited in its operation upon the objects within its reach, it cannot be extravagant to say that the agencies of government are necessarily excepted from it, since otherwise its exercise might altogether destroy the government through the destruction of its agencies. That which was pre- dicted as a possible event has been demonstrated by actual facts to be within the compass of the power ; and if considerations of policy wei'e important, it might be added that, if the States pos- sessed the authority to tax the agencies of the national govern- ment, they would hold within their liands a constitutional weapon which factious and disappointed parties would be able to wield with terrible effect when the policy of the national government did not accord with their views ; while, on the other hand, if the certain papers not stamped should not be received in evidence must be limited in its operation to the federal courts. Car- penter V. Snelling, 97 Mass. 452 ; Green V. Ilolway, 101 Mass. 243 ; g. c. 3 Am. Eep. 339; Clemens v. Conrad, 19 Mich. 170; Haight v. Grist, 64 N. C. 739; Grif- fin V. Ranney, 35 Conn. 239 ; People v. Gates, 43 N. Y. 40; Bowen v. Byrne, 55 III. 467 ; Hale a. Wilkinson, 21 Gratt. 75 ; Atkins V. Plympton, 44 Vt. 21 ; Bumpass V. Taggart, 26 Ark. 398 ; s. c. 7 Am. Rep. 623; Sammons i'. HoUoway, 21 Mich. 162 ; g. c. 4 Am. Rep. 465 ; Duffy v. Hob- son, 40 Cal. 240; Sporrer v. Eifler, 1 Heisk. 633 ; McElvain c. Mudd, 44 Ala. 48; g. 0. 4 Am. Rep. 106; Burson v. Huntington, 21 Mich. 415 ; g. c. 4 Am. Rep. 497 ; Davis v. Richardson, 45 Miss. 499; 8. 0. 7 Am. Rep. 732; Hunter v. Cobb, 1 Bnsh, 239 ; Craig i'. Dimock, 47 III. 308 ; Moore v. Moore, 47 N. Y. 467 ; 8. c. 7 Am. Rep. 466. Several of these cases have gone still farther, and declared that Congress cannot preclude parties from entering into contracts permitted by the State laws, and that to declare them void was not a proper penalty for the enforcement of tax laws. Congress cannot make void a tax deed issued by a State. Sayles e. Davis, 22 Wis. 225. Nor require a stamp upon the official bonds of State officers. State v. Garton, 82 Ind. 1. Nor tax the salary of a State officer. Collector !!. Day, 11 Wall. 113; Freedman v. Sigel, 10 Blatch. 327. Nor forbid the recording of an unstamped in- strument under the State laws. Moore v. Quirk, 106 Mass. 49; 8. c. 7 Am. Rep. , 499. " Power to tax for State purposes is as much an exclusive power in the States, as the power to lay and collect taxes to pay the debts and provide for the common defence and general welfare of the United States is an exclusive power in Congress." Clifford, J., Ward v. Mary. land, 12 Wall. 418, 427. In United States V. Railroad Co , 17 Wall. 322, it was de- cided that a municipal corporation of a State, being a portion of the sovereign power, was not subject to taxation by Congress upon its shares of stock in a railroad company. I The constitutionality of this taxation was sustained by a divided court in Ycazie Bank ». Fenno, 8 Wall. 533. 594 CONSTITUTIONAL LIMITATIONS. [CH. XIV. national government possessed a corresponding power over the agencies of the State goveruments, there would not be wanting; men who, in times of strong party excitement, would be willing: and eager to resort to this power as a means of coercing the States in their legislation upon the subjects remaining under their control. There are other subjects which are or may be removed from the sphere of State taxation by force of the Constitution of the United States, or of the legislation of Congress under it. That instrument declares that "no State shall, without the consent of Congress, lay any imposts or' duties on imports or exports, except what may be absolutely necessary for executing its inspection' laws." 1 This prohibition has led to some difficulty in its prac- tical application. Imports-, as such, are not to be taxed generally ; but it; was not the purpose of the Constitution to exclude per- manently from the sphere of State taxation all property brought! into the country from abroad ; and the difficulty encountered has been met with in endeavoring to indicate with sufficient accuracy for practical purposes the point of time at which articles imported' cease to be regarded as imports within the meaning of the pro- hibition. In general terms it has been said that when the im- porter has so acted upon the thing imported that it has become' incorporated and mixed up with the mass of property in the country, it has perhaps lost its distinctive character as an import,^ and has become subject to the taxing power of the State ; but that while remaining the property of the^ importer, in liis ware- house, in the oi-iginal form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the pro- hibition in the Constitution.^ And in the application of this rule it was declared that a State law which, for revenue purposes,, required an importer to take a license and pay fifty dollars before he should be permitted to sell a package of imported goods, was equivalent to laying a duty Upon imports. It has also been held in another case, tliat a stamp duty imposed" by the legis- lature of California upon bills of lading for gold or silver, trans- ported from that State to any port or place out of the State, 1 Const; TT. S. art. 1, § lO, cl; 2. Tlie of commerce. Higgins v. Lime, 130 Mass. provision has no application to articles 1. A State tax on alien passengers is a transported merely from one State to tax on commerce though levied in aid of another. Brown v. Houston, 33 La. Ann, an inspection law. People ■". Compagnie 848 ; s. c. 39 Am. Rep. 284 ; aflBrmed, 114 &c., 107 JS. S. 59. But a like impost under IT. S. 622. See State i'. Pittsburg, &c. federal law is valid. Head Money Cases, Co., 6 Sou. Rep. 220 (La.). But an in- 112 U. S. 580. spection law applicable only to lime man- ^ Brown o. Maryland, 12 Wheat. 419;' u&ctured in Maine, is held a regulation 441, per il/arsAa//, Chi J. CH. XIV.] THE POWER OF TAXATION. 595 was in effect a tax upon exports, and the law was consequently void,^ Congress also is vested ^ith power to regulate commerce. This power is not so far exclusive as to preclude State legislation on matters either local in their nature or operation, or intended to be mere aids to commerce, for which special regulations can more effectually provide ; such as harbor pilotage, beacons, buoys, the improvement of navigable waters within the State, and the examination as to their fitness of railroad employees, provided such legislation does not conflict with the regulations made by federal law.^ Except as to such matters the power of Congress over commerce with foreign nations and among the' several States is exclusive. If Congress has made no express regulations with regard to such commerce, its inaction is equivalent to a declara- tion that it shall be free.' The States, therefore, can enforce no regulations which make foreign or iuter-state commerce subject to the payment of tribute to them.* Duties of tonnage, the States 1 Almy V. California, 24 How. 169. See what is said of this case in Woodruff ». Parham, 8 Wall. 123, 137. And com- pare Jackson Iron €o. v. Auditor-General, 32 Mich. 488. See also Brumagim v. Tillinghast, 18 Gal. 265; Garrison o. Tillinghast, 18 Cal. 404; Ex parte Mar- tin, 7 Nev. 140 ; Turner v. State, 55 Md. 240 ; Turner v. Maryland, 107 V. S. 88. In the last two cases a law requiring an inspection of tobacco going out of the State is sustained. The States cannot discriminate in taxation between the pro- ductions of different States. Welton v. Missouri, 91 U. S. 275 ; Tieman v. Rinker, 102 U. S. 123. 2 Cooley V. Board of Wardens, 12 How. 299; Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245 ; Oilman v. Phil- adelphia, 3 Wall. 713; Ex parte Mc- Niel, 13 Wall. 236; Henderson v. New York, 92 U. S. 259 ; Wilson v. MoNamee, 102 U. S. 572 ; Mobile v. Kimball, 102 U. S. 691 ; Escanaba Co. v. Chicago, 107 U. S. 678 ; Huse v. Glover, 119 U. S. 543 ; Willamette Iron B. Co. v. Hatch, 125 U. S. 1 ; Smith v. Alabama, 124 U. S. 465 ; Nashville, C. & St. L. Ry. Co. f. States 128 U. S. 96. A statute discriminating as to pilotage in favor of vessels from certain States is bad. Spraigue v. Thomp- son, 118 U. S. 90. Until Congress acts, State quarantine regulations are valid, and an examination fee may be charged gradedby the kind of vessel. Morgan's S. S. Co. u. Louisiana, 118 U. S. 455. See Train v. Boston Disinfecting Co., 144 Mass. 623. s Welton V. Missouri, 91 U. S. 275 Brown v. Houston, 114 U. S. 622; Wal ling V. Michigan, 116 U. S. 446 ; Robbing V. Shelby Taxing Dist. 120 U. S. 489 : Phila. S. S. Co. v. Pennsylvania, 122 U. S 326. * In Brown v. Maryland, 12 Wheat 419, 441, it was held that a license fee of fifty dollars, required by the State of an importer before he should be permitted to sell imported goods, was unconstitu- tional, as coming directly in conflict with the regulations of Congress over com- merce. So a tax on the amount of an auctioneer's sales was held inoperative so far as it applied to sales of imported goods made by him in the original pack- ages for the importer. Cook v. Pennsyl- vania, 97 TJ. S. 566. So is any tax which discriminates against imported goods. Tieman v. Rinker, 102 U. S. 123. After property brought from another State has become part of the property in a Statte, it may be taxed like other property there : Brown v. Houston, 114 U. S. 622 ; but not, if it is taxed by reason of its being so brought. Welton v. Missouri, 91 Ui S. 275. See Phila. S. S. Co. v. Pennsyl- vania, 122 U. S. 326. A tax upon re- ceipts from the transportation of goods from one State to another by rail is bad. Case of State Freight Tax, 15 Wall. 232 ; 596 CONSTITUTIONAL LIMITATIONS. [CH. XIV. are also forbidden to lay.^ The meaning of this seems to be that vessels must not be taxed as vehicles of commerce, according to capacity ; ^ but it is admitted they may be taxed like other property.^ It is also believed that that provision in the Constitution of the United States, which declares that " the citizens of each State Fargo V. Michigan, 121 U. S. 230. So is one upon the gross receipts from trans- portation by aea between different States, or to and from foreign countries : Fhila. S. S. Co. V. Pennsylvania, 122 U. S. 326 ; impairing the force of Case of Tax on Railway Gross Receipts, 16 Wall. 2ti4; one upon gross receipts of car companies derived from inter-state business; State V. Woodruff, &c. Co., 114 Ind. 156. See Central R. R. Co. o. Board of Assessors, 49 N. J. L. 1. So is a privilege tax upon cars used as instruments of inter-state commerce. Piclcard v. Pullman &c. Co., 117 U. S. 34. So is the tax upon the capital stock of a foreign ferry corpora- tion engaged in such commerce, which lands and receives passengers and freight within the State. Gloucester Ferry Co. V. Pennsylvania, 114 U. S. 196. So is one on all telegraph messages sent out of a State. Telegraph Co,w. Texas, 106 U. S. 460. See Ratterman v. W. U. Tel. Co., 127 U. S. 411. A State may not exact, as a condition of doing business, a license from a company, a large part of whose business is the transmission of inter-state telegrams. Leloup v. Port of Mobile, 127 U. S. 640. That is not domestic com- merce which in going between ports of 4he same State passes more than a ma- rine league from shore. Pacific Coast S. S. Co. V. Board R. R. Com'rs, 18 Fed. Rep. 10. Compare Com. o. Lehigh Val- ley R. R. Co., 129 Pa. St. 808. For further discussion of this subject, see New York v. Miln, 11 Pet. 102 ; License Cases, 6 How. 604 ; Lin Sing u. Wash- burn, 20 Cal. 634 ; Erie Railway Co. v. New Jersey, 31 N. J. 631, reversing same case in 30 N. J. ; Pennsylvania R. R. Co. V. Commonwealth, 8 Grant, 128 ; Hinson V. Lott, 40 Ala. 123 ; Commonwealth «. Erie R. R., 62 Pa. St. 286 ; Osborne v. Mobile, 44 Ala. 493 ; s. o. in error, 16 Wall. 479; State v. Philadelphia, &o. R. R. Co., 45 Md. 361 ; Walcott v. People, 17 Mich. 68. In Crandall v. Nevada, 6 Wall. 85, it ^as held that a State law im- posing a tax of one dollar on each person leaving the State by public conveyance was not void as coming in conflict with the control of Congress over commerce, though set aside on other grounds. Logs belonging to a non-resident are liable to be taxed though intended for transportation to another State, and partially prepared for it by being deposited at the place of shipment. Coe v. Krrol, 116 U. S. 517. See Com'rs Brown Co. v. Standard Oil Co., 103 Ind. 302. On the subject of inter-state commerce, see further, pp. 717, 720-725, 737, post. Cooley on Taxation, 61-64. 1 Const, of U. S. art. 1, § 10, cl. 2. * Cannon v. New Orleans, 20 Wall. 577 ; Huse v. Glover, 119 U. S. 543. See Steamship Co. v. Port Wardens, 6 Wall. 31 ; State Tonnage Tax Cases, 12 Wall. 204 ; Inman Steamship Co. v. Tinker, 94 U. S. 238; Lott ■/. Morgan, 41 Ala. 246; Johnson v. Drummond, 20 Gratt. 419 ; State n. Charleston, 4 Rich. 286 ; John- son V. Loper, 46 N. J. L. 321. A license tax upon the business of running a ferry between two States is not a tonnage tax. Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365. But such tax upon running towboats between New Orleans and the Gulf is a regulation of commerce. Moran 0. New Orleans, 112 U. S. 69. Tolls based on tonnage may be charged for the use of improved waterways. Huse v. Glover, 119 U. S. 543. Port dues may not be laid unless services are rendered. Harbor Com'rs V. Pashley, 19 S.C. 315; Webb v. Dunn, 18 Fla. 721. * See a\)ove cases. Also Peete v. Mor- gan, 19 Wall. 581 ; Transportation Co. v. Wheeling, 99 U. S. 278. Wharfage charges are not forbidden by the above clause of the Constitution : Marshall v. Vicksburg, 16 Wall. 146 ; Packet Co. u. Keokuk, 95 U. S. 80 ; Packet Co. v. St. Louis, 100 U. S. 428 ; Vicksburg v. To- bin, 100 U. S. 4.30 ; and they may be mea- sured by tonnage. Packet Co. v. Catletts- burg, 105 U. S. 659 ; Transportation Co. ». Farkersburg, 107 U. S. 691. CH. XIV.] THE POWER OF TAXATION. 597 shall be entitled to all the privileges and immunities of the citi- zens of the several States," ^ will preclude any State from impos- ing upon the property which citizens of other States may own, or the business which they may carry on within its limits, any higher burdens by way of taxation than are imposed upon corresponding propei'ty or business of its own citizens. This is the express decision of the Supreme Court of Alabama,* following in this particular the dictum of an eminent federal judge at an early day,^ and the same doctrine has been recently affirmed by the federal Supreme Court.* As the States are forbidden to pass any laws impairing the obligation of contracts, they are of course precluded from levying any taxes which would have that effect. Therefore, as was shown in a previous chapter, if the State by any valid contract has obligated itself not to tax particular property, or not to tax beyond a certain rate, a tax in disregard of the obligation is void.^ It is also held that to tax in one State contracts owned 1 Art. 4, § 2. A license tax may not be imposed upon one who contracts with or induces laborers to leave a State. Joseph V. Bandolph, 71 Ala. 499. 2 Wiley 0. Parmer, 14 Ala. 627. * Washington, J., in Corfield v. Coryell, 4 Wash. C. C. 371, 380. And see Camp- bell V. Morris, 3 H. & McH. 554 ; Ward V. Morris, 4 H. & McH. 340; and other cases cited, ante, p. 24, note. See also Oliver V. Washington Mills, U Allen, 268. * Ward V. Maryland, 12 Wall. 419, 430 ; Case of State Tax on Foreign Held Bonds, 16 Wall. ^00. Compare Machine Co. V. Gage, 100 U. S. 676. A State can- not impose, for the privilege of doing busi- ness within its limits, a license tax upon travelling agents from other States, offer- ing for sale or selling merchandise, when none is imposed upon its own people.* McGuire v. Parker, 32 La. Ann. 832. Or a heavier license tax upon non-residents than upon residents carrying on the same business. Ward ». Maryland, 12 Wall. 418; State a. Wiggin, 64 N. H. 508. Nor a license tax upon those dealing in goods, wares, and merchandise not the product of the State, while imposing none on similar traders selling the products of the State. Welton v. Missouri, 91 U. S. 275 ; Walling v. Michigan, 116 U. S. 440; Ex farte Thomas, 71 Cal. 204. See Graff ty o. Rushville, 107 Ind. 502; Mar- shallstown v. Blum, 58 Iowa, 184 ; Pacific Junction v. Dyer, 64 Iowa, 38 ; State v. Pratt, 59 Vt. 502. Compare People v. Lyng, 42 N. W. Rep. 139 (Mich.); re- versed in U. S. Sup. Ct. April, 1890. Nor charge vessels loaded with the products of other States larger fees for the use of the public wharves than are charged ves- sels loaded with products of the same State. Guy v. Baltimore, 100 U. S. 484. See further Woodruff ». Parham, 8 Wall. 123 ; Cook v. Pennsylvania, 97 U. S. 566. " The negotiation of sales of goods which are in another State for the purpose of introducing them into the State in which the negotiation is made is inter-state commerce," and a statute imposing a privilege license upon all persons selling by sample within a Tennessee taxing district is void as applied to the drummer for an Ohio house, as interfering with such commerce, and this although Ten- nessee and foreign drummers are put on the same footing. Rnb°binB v. Shelby, Taxing District, 120 U. S. 489 ; Corson w. Maryland, Id. 502 ; Asher v. Texas, 128 U. S. 129; State v. Agee, 83 Ala. 110; State V. Bracco, 9 S. E. Rep. 404 (N. C.) ; Simmons Hardware Co. ». McGuire, 39 La. Ann. 848; Fort Scott v. Helton, 39 Kan. 764; Ex parte Rosenblatt, 19 Nev. 439. But a license tax upon agents of foreign express companies is not an interference with such commerce. Crutcher v. Com., 12 S. W. Rep. 141 (Ky.). See, also, State V. Richards, 9 S. E. Rep. 245 ( W. Va.). B See ante, p. 838, and cases cited in note. 598 COIfSTITUTIONAL LIMITATIONS. [oh, XIV, in another impairs their obligation, even though they are made and are pa,yable in the State imposing the tax, and are secm-ed by mortgage in that State.^ Having thus indicated the extent of the taxing power ,2 it is necessary to add that certain elements are essential in all taxa- tion, and that it will not follow as of course, because the power is so vast, that everything which may be done under pretence of its exercise will leave the citizen without redress, even though there be no conflict with express constitutional inhibitions. Every- thing that may be done under the name of taxation is not necessarily a tax ; and it may happen that an oppressive burden imposed by the government, when it comes to be carefully scruti- nized, will prove, instead of a tax, to be an unlawful confiscation of property, unwarranted by any principle of constitutional government. In the first place, taxation having for its only legitimate object the raising of money for public purposes and the proper needs of 1 State Tax on Foreign Held Bonds, 15 Wail. 300; Street Railroad Co. v. Morrow, 87 Tenn. 406. See >ilso Mayor of Baltimore v. Hussey, 67 Md. 112; Railroad Co. v. Com'rg, 91 N. C. 454; Railroad Co. v. Jackson, 7 Wall. 262; Oliver v. Washington Mills, 11 Allen, 268. The stock of a foreign corpora- tion is not taxable, though its prop- erty is used within tlie State by its licensees. Com. v. Amer Bell Tel. Co., 129 Pa. St. 217 ; People v. Amer. Bell Tel. Co., 22 N. E. Rep. 1057 (N. Y.). Compare Catlin v. Hull, 21 Vt. 152; Jen- kins V. Charleston, 6 S. C. 393; Mumford V. Sewall, 11 Oreg. 67. A State may tax its citizen upon the public debt of another State held by him, though exempt from taxes in such State. Bonaparte v. Tax Court, 104 U. S. 692. A foreign corpora- tion having a railroad and doing business in a State, may, as a condition of doiqg business, be required, like a domestic cor-, poration, to collect a tax upon its loans held by residents of the State. Com. V. New York, L. E. & W. R. R. Co., 129 pa. St. 463. '■* A State may, if it see fit, tax the property owned, held, and used by itself or its municipalities for public purposes ; but this would so obviously be unwise and impolitic that the intent to do so is never assumed, but public property is always, by implication of law, exempt from the operation of the general terms of tax laws. People v. Salomon, 51 111. 37.; Trustees of Industrial University v. Champaign Co., 76 III. 184; Directors of Poor V. School Directors, 42 Pa. St. 21.; People V. Austin, 47 Cal. 353; People V. Doe, 36 Cal. 220 , Wayland v. Countv Com'rs, 4 Gray, 500; Worcester Co. v. Worcester, 116 Mass. 193 ; State v. GaflT- ney, 34 N. J. 133; Camden ». Camden Village Corp., 77 Me. 530; Erie Co. u. Erie, 113 Pa. St. 360. But city water- works may be taxed for county purposes. Erie Co. v. Com'rs Water- Works, Id. 368. The same rule applies to special city as- sessments. Green v. Hotaling, 44 N. J. L. 847 ; Polk Co. Savings Bank v. State, 69 Iowa, 24; Harris Co. u. Boyd^ 70 Tex. 287. But see contra, Adams .Co. o. Quincy., 22 N. E. Rep. 624 (111.). And the exemption extends to lands ac- quired by a city outside its limits to supply itself with water. West Hart- ford V. Water Com'rs, 44 Conn. 360 ; Rochester v. Rush, 80 N. Y. 302. So of a ferry landing in Brooklyn owned by New York city, to which the ferry privi- lege belongs. People v. Assessors, 111 N. Y. 506. See Black v. Sherwood, 84 Va. 906. But not so of land taken by a city in payment of the defalcation of an officer. People v. Chicago, 124 111. (3H. XIV.] THE POWER OF TAXATION. 599 government, the exaction of moneys from the citizens for other purposes is not a proper exercise of this power, and must there- fore be unauthorized. In this place, however, we do not 'use the word public in any narrow and restricted sense, nor do we mean to be understood that whenever the legislature shall overstep the legitimate bounds of their authority, the case will be such that the courts can interfere to arrest their action. There are many t cases of unconstitutional action by the represenftati^^es ;of the people which can be reached only through the ballot-box ; and there are other cases where the line of distinction between that which is allowable and that which is not is so faint and shadowy that the decision of the legislature must be accepted as final, even though the judicial opinion might be different. But thete are Btill other cases where it is entirely possible for the legislature so clearly to exceed the bounds of due authority that we canncyt doubt the right of the courts to interfere and check what can only be looked upon as ruthless extortion, provided the nature of the case is such that judicial process can afford relief. An un- limited power to make any and every thing lawful which the legislature might see fit to call taxation, would be, when plainly stated, an unlimited power to plunder the citizen.^ It must always be conceded that the proper authority to 'deter- mine what should and what should not constitute a public burden is the legislative department of the State. This is not only true for the State at large, but it is true also in respect to each munici- pality or political division of the State ; these inferior corporate existences baying only such authority in this regard as the legis- lature shall confer upon them.^ And in determining this ques- tion, the legislature cannot be held to any narrow or technical rule. Not only are certain expenditures be raised for a local Im- made upon him under tlie guise of taxa- provement, and the property upon which tion. Ijf ;any suoh illegal encroachment is it is to be appnrlsoned. 'Spencer v. Mer- attempted, he can alwaysinvoke the aid of chant, 100 N. Y. 585 ; affirmed, 125 • XJ. S. the judicial tribunals for bis protection, 345. See ante, p. 288, and cases cited in and prevent his money or other .property note 1, p. 601. 600 CONSTITUTIONAL LIMITATIONS. [CH. XIV. of its ordinary functions, but as a matter of policy it may some- times be proper and wise to assume other burdens which rest entirely on considerations of honor, gratitude, or charity. The ofi&cers of government must be paid, the laws printed, roads con- structed, and public buildings erected ; but with a view to tlie general well-being of society, it may also be important tliat the children of the State should be educated, the poor kept from starvation,^ losses in the public service indemnified, and incen- tives held out to faithful and fearless discharge of duty in the future, by the payment of pensions to those who have been faith- ful public servants in the past. There will therefore be necessary expenditures, and expenditures which rest upon considerations of policy only, and, in regard to the one as much as to the other, the decision of that department to which alone questions of State policy are addressed must be accepted as conclusive. Very strong language has been used by the courts in some of the cases on this subject. In a case where was questioned the validity of the State law confirming township action which granted gratuities to persons enlisting in the military service of the United States, the Supreme Court of Connecticut assigned the following reasons in its support : — " In the first place, if it be conceded that it is not competent for the legislative power to make a gift of the common property, or of a sum of money to be raised by taxation, where no possible public benefit, direct or indirect, can be derived therefrom, such exercise of the legislative power must be of an extraordinary character to justify the interference of the judiciary ; and this is not that case. "Second. If there be the least possibility that making the gift will be promotive in any degree of the public welfare, it be- comes a question of policy, and not of natural justice, and the determination of the legislature is conclusive. And such is this case. Such gifts to unfortunate classes of society, as the indigent blind, the deaf and dumb, or insane, or grants to particular col- leges or schools, or grants of pensions, swords, or other mementos for past services, involving the general good indirectly and in slight degree, are frequently made and never questioned, " Tliird. The government of the United States was consti- tuted by the people of the State, although acting in concert with 1 Taxes cannot be levied to donate to School v. Brown, 45 Md. 310. But a city benevolent and charitable Bocieties, which may be allowed to pay a part of the ex- are controlled by private individuals, and pense of an orphanage to which its niapis- over which the public authorities have no trates may commit poor children. Sliep- Bupervision and control- So held in an herd's Fold n. Mayor, &o. New York 96 able opinion in St. Mary's Industrial N. Y. 137. ' CH. XIV.] THE POWER OF TAXATION. 601 the people of other States, and the general good of the people of this State is involved in the maintenance of that general govern- ment. In many conceivable ways the action of the town might not only mitigate the burdens imposed upon a class, but render the service of that class more efficient to the general government, and therefore it must be presumed that the legislature found that the public good was in fact thereby promoted. " And fourth. It is obviously possible, and therefore to be in- tended, that the General Assembly found a clear equity to justify their action." ^ And the Supreme Court of Wisconsin has said : " To justify the court in arresting the proceedings and declaring the tax void, the absence of all possible public interest in the purposes for which the funds are raised must be clear and palpable ; so clear and palpable as to be perceptible by every mind at the first blush. . , . It is not denied that claims founded in equity and justice, in the largest sense of those terms, or in gratitude or charity, will support a tax. Such is the language of the authorities." * But we think it is plain, as has been said by the Supreme Court of Wisconsin, that " the legislature cannot ... in the form of a 1 Booth V. Woodbury, 32 Conn. 118, 128. See to the same effect Speer v. School Directors of Blairville, 50 Pa. St. 150. The legislature is not obliged to consult the will of the people concerned in ordering the levy of local assessments for the public purposes of the local gov- ernment. Cheaney v. Hooser, 9 B. Monr. 330; Slack „. Maysville, &c. R. K. Co., 13 B. Monr. 1 ; Cypress Pond Draining Co. V. Hooper, 2 Met. (Ky.) 350; Spencer V. Merchant, 100 N. Y. 585 ; 125 U. S. 345. Compare People ». Common Council of Detroit, 28 Mich. 228. The legislature^ cannot delegate to parties concerned the authority to levy taxes for the benefit of their own estates, and of those of others interested with them but not consenting. ScuflSetown Fence Co. ■/. McAllister, 12 Bush, 312. 2 Brodhead v. City of Milwaukee, 19 Wis. 624, 652. See Mills v. Charleton, 29 Wis. 411 ; B. c. 9 Am. Rep. 578 ; Spring V. Russell, 7 Me. 273 ; Williams v. School District, 33 Vt. 271. Taxation to supply natuial gas to a city is valid. Fellows v. Walker, 39 Fed. Rep. 651. It is not com- petent for a city to levy taxes to loan to persons who have suffered from a fire. Lowell B. Boston, 111 Mass. 454; s. c. 15 Am. Rep. 39, and note p. 56 ; Feldman w. City Council of Charleston, 23 S. C. 57. Or to supply farmers, whose crops have been destroyed, with provisions, and grain for seed and feed. State v. Osawkee, 14 Kan. 418. Or to aid manufacturing en- terprises : Allen v. Jay, 60 Me. 124 ; s. c. 11 Am. Rep. 185 ; Commercial Bank v. lola, 2 Dill. 353; Loan Association ;;. Topeka, 20 Wall. 655; Opinions of Judges, 58 Me. 590 ; Coates v. Campbell, 37 Minn. 498; Mathers. Ottawa, 114111. 659 J Parkersburg v. Brown, 106 U. S. 487; Cole v. La Grange, 113 U. S. 1; though it be under pretence of sanitary improvements. Clee v. Sanders, 42 N. W. Rep. 154 (Mich.). Power to tax in aid of a water grist mill, recognized in Nebraska : Traver v. Merrick Co., 14 Neb. 327 ; can- not cover a steam mill, Osborn v, Adams Co., 109 U. S. 1. Taxation to pay a sub- scription to a private corporation is not for a public purpose. Weismer u. Douglas, 64 N. Y. 91; B. c. 21 Am. Rep. 586. A city cannot be empowered to erect a dam, with tlie privilege afterwards at discretion to devote it to either a public or private purpose ; but the public purpose must ap- pear. Attorney-General v. Bau Claire, 37 Wis. 400. 602 CONSTITUTIONAL LIMITATIONS. fOH. XTV. tax, take the money of the citizens and give it to an individual, •the public interest or welfare being in no way connected with the transaction. The objects for which money is raised by taxation ■must he public, and such as subserve the common interest and well-being of the community required to contribute."^ Or, as stated by the Supreme Court of Pennsylvania, " the legislature has no constitutional right to ... lay a tax, or to authorize any municipal corporation to do it, in order to raise funds for a mere private purpose. No such authority .passed to the assembly by the general grant of the legislative power. This would not be legislation. Taxation is a mode of raising revenue for public .purposes. When it is prostituted to objects in no way connected with the public interest or welfare, it ceases to be taxation and becomes plunder. Transferring money from the owners of it into the possession of those who have no title to it, though it be done under the name and form of a tax, is unconstitutional for :all the reasons which forbid the legislature to usurp any other power not granted to them. " ^ And by the same court, in a still later case, where the question was whether the legislature could lawfully require a municipality to refund to a bounty association the sums which they had advanced to relieve themselves from an impending military conscription, " such an enactment would not be legislation at all. It would be in the nature of judicial action, It is true, but wanting the justice of notice to parties to be afr •fected by the hearing, trial, and all that gives sanction and force to regular judicial proceedings ; it would much more resemble an imperial rescript than constitutional legislation :' first, in declar- ing an obligation where none was created or previously existed ; sand next, in decreeing payment, by directing the money or prop- erty of the people to be sequestered to make the payment. The legislature can exercise no such despotic functions. " ^ ' Per Dixon, Ch. J., in Brodhead u. advanced by an individual wilhont any MilwauJkee, 19 Wis. 624, 652. See also pledge of the public credit, must be held liumsden v. Cross, 10 Wis. 282 ; Opinions referable, we think, to the same principle, of Judges, 58 Me. 590 ; Moulton v. Ray- And see cases, ante, p. 280, note 2. Com- mend, 60 Me. 121 •j.post, p. 606 and note. pensation for money voluntarily contrib- ■2 Per Black, Ch. J., in Sharpless e. uted for levee purposes by allovring such Mayor, &c., 21 Pa. St. 147, 168. See sums as a credit on future levee taxes is 'Opinions of Judges, 58 Me. 590. not allowable. Those incidentally bene- ' Tyson v. School Directors of Halifa;;, filed cannot be compelled to refund mon- 51 Pa. St. 922. See also Grim v. Weis- ey thus spent. Davis v. Gaines, 48 Ark. enburg School District, 57 Pa. St. 433. 370. We are aware that there are some The decisions in Miller v. Grandy, 13 Mich, cases the doctrine ot which seems opposed 540; Crowell v. Hopkinton, 45 N. H. 9; to those we have cited, but perhaps a care- and Shackford v. Newington, 46 N. H. ful examination will enable us to har- .416, so far as they hold that a bounty law mnnize them all. One of these is Guilford is not to be held to cover moneys before v Supervisors of Chenango, 18 Barb. 616, CH. XIV.] THE POWER OF TAXATION. 603 A like doctrine has been asserted by the Supreme Court of Michigan in a recent case. That State is forbidden by its consti- and 13 N. Y. 143. The facts in that case were as follows : Cornell and Clark were forwerly commissioners of highways of the town of Guilford, and as suoh, by di- rection of the voters of the town, had sued the Butternut and Oxford Turnpike Road Company. They were unsuccessful in the action, and were, after a long litigation, obliged to pay costs. The town then re- fused to reimburse them these costs. Cor- nell and Clark sued the town, and, after prosecuting the action to the court of last resort, ascertained that they had no legal remedy. They then applied to the legis- lature, and procured an act authorizing the question of payment or not by the town to be submitted to the voters at the succeeding town meeting. The voters decided that they would not tax them- selves for any such purpose. Another application was then made to the legisla- ture, which resulted in a law authorizing the county judge of Chenango County to appoint three commissioners, whose duty it should be to Iiear and determine the amount of costs and expenses incurred by Cornell and Clark in the prosecution and defence of the suits mentioned. It au- thorized the commissioners to make an award, which was to be filed with the county clerk, and the board of super- visors were then required, at their next annual meeting, to apportion the amount of the award upon the taxable property of the town off Guilford, and provide for its collection in the same manner as other taxes are collected. The validity of this act was affirmed. It was regarded as one of those of which Denio, J., says, " The statute book is ftiU, perhaps too full, of laws awarding damages and compensa- tion of various kinds to be paid by the public to individuals who had failed to obtain what they considered equitably due to them by the decision of adminis- trative officers acting under the provi- sions of former laws. The courts have no power to supervise or review the doings of the legislature in such cases." It is ap- parent that there was a strong equitable claim upon the township in this case for the reimbursement of moneys expended by public officers under the direction of their constituents, and perhaps no prin- ciple of constitutional law was violated by the legislature thus changing it into a legal demand and compelling its satisfac- tion. Mr. Sedgwick criticises this act, and says of it that it " may be called taxation, but in truth it is the reversal of a judicial decision." Sedg. on Stat. and Const. Law, 414. There are very many claims, however, resting in equity, which the courts would be compelled to reject, but which it would be very proper for the legislature to recognize, and pro- vide for by taxation. Brewster u, City of Syracuse, 19 N. Y. 116. Another case, perhaps still stronger than that of Guil- ford V. The Supervisors, is Thomas v. Le- land, 24 Wend. 65. Persons at Uticn had given bond to pay the extraordinary ex- pense that would be caused to the State by changing the junction of the Chenango Canal from Whitesbor'ough to Utica, and the legislature afterwards passed an act requiring the amount to be levied by a tax on the real property of the city of Utica. The theory of this act may be stated thus : The canal was a public way. The expense of constructing all public ways may be properly charged on the community especially or peculiarly bene- fited by it. The city of Utica was spe- cially and peculiarly benefited by having the canal terminate there ; and as the expense of construction was thereby in- creased, it was proper and equitable that the property to be benefited should pay this difference, instead of the State at large. The act was sustained by the courts, and it was well remarked that the fact that a bond had been before given securing the same money could not de- tract from its validity. Whethertliis case can stand with some others, and especially with that of Hampshire v. Franklin, 16 Mass. 76, we have elsewhere expressed a doubt, and it must be conceded that, for the legi^ature in any case to compel a imunicipality to assume a burden, on the^ ground of local benefit or local obligation,! against the will of the citizens, is the ex- ercise of an arbitrary power little in har- mony with the general features of our republican system, and only to be justi- fied, if at all, in extreme cases. The gen- eral idea of our tax systein is, that tho^e 604 CONSTITUTIONAL LIMITATIONS. [CH. XIV. tution to engage in works of public improvement, except in the expenditure of grants of land or other property made to it for this purpose. The State, with this proliibition in force, entered into a contract with a private party for the construction by such party of an improvement in the Muskegon River, for which the State was to pay the contractor fifty thousand dollars, from the Internal Im- provement Fund. The improvement was made, but the State oflBcers declined to draw warrants for the amount, on the ground that the fund from which payment was to have been made was exhausted. The State then passed an act for the levying of tolls upon the property passing through the improvement suflBcient to pay the contract price within five years. The court held this act void. As the State had no power to construct or pay for such a work from its general fund, and could not constitutionally have agreed to pay the contractors from tolls, there was no theory on which the act could be supported, except it was that the State had misappropriated the Internal Improvement Fund, and there- fore ought to provide payment from some other source. But if the State had misappropriated the fund, the burden of reimburse- sliall vote the burdens who are to pay them ; and it would be intolerable that a central authority should have power, not only to tax localities, for local pur- poses of a public character which they did not approve, but also, if it so pleased, to compel them to assume and discharge private claims not equitably chargeable upon them. See the New York cases above referred to criticised in State v. Tappan, 29 Wis. 664, 680 ; s. c. 9 Am. Kep. 622. The legislature may require a county to pay for a road : Wilcox v. Deer Lodge Co., 2 Mont. 574 ; and may appor- tion to a township such part of the cost as the length of it in the township bears to its total length. Mahoney v. Comry, 103 Pa. St. 362. See also Shaw v. Den- nis, 10 III. 405. The cases of Cheaney v. Hooser, 9 B. Monr. 330 ; Sharp's Ex. v. Dunavan, 11 B. Monr. 223 ; Maltus v. Shields, 2 Met. (Ky.) 553, will throw some light on this general subject. The case of Cypress Pond Draining Co. v. Hooper, 2 Met. (Ky.) 350, is also instructive. The Cypress Pond Draining Company was in- corporated to drain and keep drained the lands within a specified boundary, at the cost of the owners, and was authorized by the act to collect a tax on each acre, not exceeding twenty-flve cents per acre, for that purpose, for ten years, to be col- lected by the sheriff. With the money thus collected, the board of managens, six in number, named in the act, was re- quired to drain certain creeks and ponds within said boundary. The members of the board owned in the aggregate 3,840 acres, the larger portion of which was low land, subject to inundation, and of little or no value in its then condition, but which would be rendered very valuable by the contemplated draining. The corporate boundary contained 14,621 acres, owned by- sixty-eight persons. Thirty-four of these, owning 5,975 acres, had no agency in the passage of the act, and no notice of the application therefor, gave no assent to its provisions, and a very small por- ti Supervisors, 42 Wis. 502 ; Phi'.- leo V. Hiles, 42 Wis. 527 ; Bureau Co. v. Railroad Co., 44 HI. 229 ; Cnmmings v. National Bank, 101 U. S. 153 ; that it is not competent to add a percentage to the list for refusal or neglect to make oath to the tax list: McCbrmick v. Fitch, 14 Minn. 252; but see Ex parte Lynch, 16 S. C. 32 ; that it is competent to permit a deduction for debts from tlie assessment : Wetraore v. Multnomah Co., 6 Oreg. 463; contra, Exchange Bank v. Hines, 3 OliiO' St. 1 ; that where property is required to be taxed by value, it is not competent to tax a corporation on its property and also on its capital stock : State v. Cumber- land, &c. R. R. Co., 40 Md. 22 ; that a statute making a portion only of a certain kind of property taxable is unconstitu- tional : Pike v. State, 5 Ark. 204 ; that occupation taxes are no violation of the rule of uniformity ; Youngblood i-. Sex- ton, 32 Mich. 406 ; Ex parte Robinson, 12 Nev. 263 ; Gatlin v. Tarboro, 78 N. C. 119; that foreign insurance companies may be required to pay different taxes from others ; State v. Lathrop, 10 La. Ann. 398 ; Commonwealth v. Germania L. I, Co., 11 Phila. 553 ; Ex parte Cohn, 18 Nev. 424 ; see San Francisco v. Liverpool, &o. Co., 74 Cal. 113. They may be required to pay such taxes as companies of the taxing State are made to pay in the home States- of such companies. Home Ins. Co. v. Swigert, 104 HI; 653 ; Phoenix Ins. Co. ». Welch, 29 Kan. 672 ; People v. Fire Ass., 92 N. Y. 311 ; State v. Ins. Co., 115 Ind. 257. Taxation for roads upon the citi- zens only of a township is unequal. Mar- ion, &c. Ry. Co. V. Champlin, 37 Kan; 682. So is the exemption from such taxes of all property in incorporated villages, Com'rs V. Owen, 7 Col. 467. But uni- formity provisions do not apply to the distribution of a road fund. Holtbn v. Com'rs Mecklenburg Co., 93 N. C. 430. And see Weber v. Reinhard, 73 Pa. St. 370; 8. c. 13 Am. Rep. 747; Louisville,' &c. R. R. Co. V. State, 25 Ind. 177 ; Whitney v. Ragsdale, 33 Ind. 107 ; Fran- cis V. Railroad Co., 19 Kan. 803 ; Primm- V. Belleville, 59 III: 142 ; Wis. Cent. R. R. Co. V. Taylor Co., 52 Wis. 37 ; State v. 608 CONSTITUTIONAL LIMITATIONS. [CH. XIV. common, there should be common contribution to discharge it.^ Taxation is the equivalent for the protection which the govern- ment affords to the persons and property of its citizens ; and as all are alike protected, so all alike should bear the burden, in proportion to the interests secured. Taxes by the poll are justly regarded as odious and are seldom resorted to for the collection of revenue ; and when taxes are levied upon property there must be an appoi'tionment with reference to a uniform standard, or they degenerate into mere arbitrary exactions.^ In this particular the State constitutions have been very specific, though in provid- ing for equality and uniformity they have done little more than to state in concise language a principle of constitutional law which, whether declared or not, would inhere in the power to tax. Taxes may assume the form of duties, imposts, and excises; and those collected by the national government are very largely of this character. They may also assume the form of license fees, for permission to carry on particular occupations, or to enjoy special franchises.^ They may be specific; such as are often Estabrook,3 Neb. 173; Murray v. Leh- man, 61 Miss. 283; Graham v. Com'rs Chautauqua Co., 31 Kan. 473 ; Dunham V. Cox, 44 N. J. Eq. 273. The following are special cases : A tax on drays, &c., proportioned to the num- ber of animals employed in drawing them, contravenes the constitutional require- ment of uniformity in license taxes. State ". Endom, 23 La. Ann. 663. See New Orleans v. Home Ins. Co., 23 La. An. 449. A railroad company cannot be taxed according to the length of its road. State V. South Car. R. E. Co., 4 S. C. 376. A tax on cotton cannot be proportioned to the weight regardless of grades. Sims II. Jackson, 22 La. Ann. 440. Income is not property for the purposes of taxation. Waring » Savannah 60 Ga. 93. A col- lateral inheritance tax is not a property tax. Schoolfield's Exec. v. Lynchburg 78 Va. 366. A tax on the franchises of a coal company may be proportioned to the coal mined. Kittanning Coal Co. v. Commonwealth, 79 Pa. St. 100. The keepers of private markets may be charged a license tax though none is im- posed on those who sell in tlie public mar- kets. New Orleans ■». Dubarry, 33 La. Ann. 481 ; !i. c. 39 Am. Rep. 273. 1 2 Kent, 231 ; Sanborn v. Rice, 9 Minn. 273 ; Ryerson v. Utley, 16 Mich. 269 ; Oliver ». "Washington Mills, 11 Al- len, 268; Tidewater Co. ». Costar, 18 N. J. Eq. 518. ' A tax on negro polls and negroes' property alone, to be applied to the edu- cation of negro children alone, is bad. Puitt t;. Com'rs Gaston Co., 94 N. C. 709. ' As to taxes on business and fran- chises, see Cooley on Taxation, c. 18. Offices, posts of profit, and occupations are proper subjects of taxation. Brown's App., Ill Pa. St. 72. That all occupa- tions may be taxed when no restraints are imposed by the Constitution, see State V. Ilayne, 4 Rich. 403 ; Ould v. Rich- mond, 23 Gratt. 464 ; s. c. 14 Am. Rep. 139; Commonwealth v. Moore, 25 Gratt. 951 ; Cousins v. State, 50 Ala. 113 ; s. c. 20 Am. Rep. 290; Stewart v. Potts, 49 Miss. 749; Morrill v. State, 38 Wis. 428 ; B. c. 20 Am. Rep. 12 ; Albreclit v. State, 8 Tex. App. 216 ; s. c. 34 Am. Rep. 737 ; Young V. Thomas, 17 Fla. 169; 8. c. 35 Am. Rep. 93; Richmond & D. R. R. Co. V. Reidsville, 101 N. C. 404. Such a tax may be based on the average amount of a merchant's stock. Newton v. Atchi- son, 31 Kan. 151. See Danville v. Shel- ton, 76 Va. 325. A city may be em- powered to impose a license upon the business of a foreign insurance company, as well as a tax upon its net income : St. CH. XIV.] THE POWER OF TAXATION. 609 levied upon corporations, in reference to the amount of capital stock, or to the business done, or profits earned by them. Or they may be direct ; upon property, in proportion to its value, or upon some other basis of apportionment which the legislature shall regard as just, and which shall keep in view the general idea of uniformity. The taxes collected by the States are mostly Joseph V. Ernst, 96 Mo. 360 ; or an occu- pation tax upon saloons, in addition to tlie license to sell. State v. Bennett, 19 Neb. 191. A privilege tax on private car- Tiages in addition to an ad valorem tax is invalid. Livingston v. Faducah, 80 Ky. 656. An occupation tax must not be go unreasonable as to be prohibitory. Caldwell V. Lincoln, 19 Neb. 569. See Mankato v. Fowler, 32 Minn. 864 ; W. U. Tel. Co. V. Philadelphia, 12 Atl. Eep. 144 (Pa.) ; Jackson v. Newman, 59 Miss. 385; People V. Russell, 49 Mich. 617 ; Ex parte Gregory, 20 Tex. App. 210; Kneeland V. Pittsburgh, 11 Atl. Eep. 657 (Pa.), as to what is a reasonable license, tax, or fee. But revenue cannot be raised in the form of license fees under an authority to require licenses to be taken out for mere police purposes. Ante, 243 and note ; Burlington v. Bumgardner, 42 Iowa, 673, and cases cited. As to when a power to license can be made use of as a means of raising revenue, see Ex parte Frank, 52 CaL 606; s. c. 28 Am. Rep. 642; Pleuler v. State, 11 Neb. 547; U. S. Dist. Go. V. Chicago, 112 111. 19; In re Guerre- ro, 69 Cal 88 ; Flanagan v. Plainfield, 44 N. J. L. 118. It is no valid objection to a tax on business that its operation will not be uniform, youngblood v. Sexton, 32 Mich. 406 ; Adier v. Whitbeck, 44 Ohio St. 539. But see Pullman P. C. Co. v. State, 64 Tex. 274 ; Banger's App., 109 Pa. St. 79. It should operate uniformly upon each class taxed. Smith a.Louisville, 6 S. W. Rep. 911 (Ky ) ; St Louis v. Bow- ler, 94 Mo. 630; Braun v. Chicago, 110 111 186. Further as to taxes on occupations, see Boye f. Girardey, 28 La. Ann. 717 ; Hodgson 17. New Orleans, 21 La. Ann. 801; New Orleans v. Kaufman, 29 La. Ann. 283 ; b. o. 29 Am. Rep. 328 ; Texas B. & I. Co. V. State, 42 Tex. 636. In the following cases license fees were held not to be taxes, but merely police regulations : Required of foreign corporations doing business in the State : People 0. Thurber, 13 111. 554 j Walker v. Springfield, 94 HI. 864. Of dealers in in- toxicating liquors : Burch v. Savannah, 42 Ga. 596; Durach's Appeal, 62 Pa. St. 491 ; East St. Louis v. Wehrung, 46 111. 892 ; Lovingston v. Trustees, 09 111. 564; Baker v. Panola Co., 30 Tex. 86; East St. Louis t<. Trustees, 102 111. 489 ; Rochester v. Upman, 19 Minn. 108; State V. Cassidy, 22 Minn. 812 ; s. c. 21 Am. Rep. 765 ; State v. Klein, 22 Minn. 328; Pleuler v. State 11 Neb. 547. Of auctioneers : Goshen v. Kern, 63 Ind. 468. Of a street railway company : Johnson v. Philadelphia, 60 Pa. St. 445. But see New York o. Railway Co., 32 N. Y. 261. Of insurance companies : Fire Department v. Helfenstein, 16 Wis. 136. Of gas companies for inspection : Cincinnati Gas Co. v. State, 18 Ohio St. 237. Of proprietors of theatres : Bos- ton V. Schaffer, 9 Pick. 415. For build- ing licenses: Welch v. Hotchkiss, 39 Conn. 140. The fee exacted in granting a ferry license is not a tax, but is paid for the franchise. Chilvers «. People, 11 Mich. 4-3. See Wiggins Ferry Co. v. East St. Louis, 102 111. 660. The exaction of license fees under the police power is no violation of the consti- tutional requirement of uniform taxation. State V. Cassidy, 22 Minn. 312; b. c. 21 Am. Rep. 765 ; Walters v. Duke, 31 La. Ann. 668. An act sustained which im- posed a smaller license tax on proprietors of bars on steamboats than on those of bars on land. State y. Rolle, 30 La. Ann. 991. The exemption from taxation of the Louisiana Savings Bank held not to exclude a city license tax on the business. New Orleans v. Savings Bank, 31 La. Ann, 637. An exemption of all property in a town from parish taxes does not pre- vent the imposition of a license. More- house Parish v. Brigham, 6 Sou. Rep. 257 (La.). For instances of license fees held to be taxes and not warranted by statute, see ant^, 243, note. 39 610 CONSTITUTIONAL LIMITATIONS. [CH. XIV. of the latter class, and it is to them that the constitutional prin- ciples we shall have occasion to discuss will more particularly apply. As to all taxation apportioned upon property, there must be taxing districts, and within these districts the rule of absolute uniformity must be applicable.^ A State tax is to be apportioned through the State, a county tax through the county, a city tax through the city ; ^ while in the case of local improvements, bene- fiting in a special and peculiar manner some portion of the State or of a county or city, it is competent to arrange a special taxing district, within which the expense shall be apportioned. School districts and road districts are also taxing districts for the pecu- liar purposes for which they exist, and villages may have special powers of taxation distinct from the townships of which they form a part. Whenever it is made a requirement of the State constitution that taxation shall be upon property according to value, such a requirement implies an assessment of -valuation by public officers at such regular periods as shall be provided by law, and a taxation upon the basis of such assessment until the period arrives for making it anew.^ Thus, the Constitutions of Maine ' If the proper rule of uniformity is established by the legislature, but the taxing oflSeers purposely erade it and as- sess unequal taxes, the collection will be enjoined. Merrill v. Humphrey, 24 Mich. 170 ; Lefferts v. Supervisors, 21 Wis. 688 ; Mason v. Lancaster, 4 Bush, 406 ; Fuller v. Gould, 20 Vt.643 ; Cummings v. National Bank, 101 U. S. 153, and cases cited. The constitutional requirement that property shall be assessed for taxation by uniform rules, and according to true value, does not make it necessary to tax all property, and it is satisfied by such regulations as impose the same percent- age of actual value upon such property as is made taxable, in the township for town- ship purposes, in the county for county purposes, &c. Stratton v. Collins, 43 N. J. 663. 2 An act.requiring a school-district tax when collected to be distributed between the district collecting it and others is void, as being in effect a local tax for a general purpose. Broftiley v. Reynolds, 2 Utah, 525. See State v. Fuller, 39 N. J. 576 ; McBean v. Chandler, 9 Heisk. 349. A State tax must be apportioned uniformly through the State, a county tax through the county, a city tax through the city. East Portland t>. Mult- nomah Co., 6 Oreg. 62 ; Exchange Bank V Hines, 3 Ohio St. 1, 15 ; Pine Grove v. Talcott, 19 Wall. 666, 675; Fletcher v. Oliver, 25 Ark. 289 ; Chicago, &c. R. B. Co. u. Boone Co., 44 111. 240. For pe- culiar cases see State v. New Orleans, 15 La. Ann. 354 ; Kent v. Kentland, 62 Ind. 291 : 8. c. 30 Am. Rep. 182 ; Com'rs oi Ottawa Co. v. Nelson, 19 Kan. 234 ; s. c. 27 Am. Rep. 101 ; Cleveland ti. Heisley, 41 Ohio St. 670. The whole burden of expense for fire protection, police, &c., cannot be imposed upon an area within a city. Morgan v. Elizabeth, 44 N. J. L. 571. ' Where a tax is to be assessed by the value of property, or in proportion to benefits, the right of the owner to be heard in some stage of the proceedings would seem to be clear ; and it has been expressly affirmed in some cases. See Philadelphia v. Miller, 49 Pa. St. 440; Stewart v. Trevor, 56 Pa. St. 374 ; But- ler ». Supervisors of Saginaw, 26 Mich. 22 ; Thomas v. Gain, 35 Mich. 155 ; Cleg- horn V. Postlewaite, 43 HI. 428 ; Darling V Gunn, 50 111 424 ; Kuntz c Sumption, 117 Ind. 1 ; Redwood Co. o. Winona, &o. Co., 40 Minn. 512. Chauvin v. Valiton, 20 Pae. Rep. 658 (Mont.) ; post 617, note. The statutes generally provide for a hear- ing before some board, either on some CH. XIV.] THE POWER OF TAXATION. 611 and Massachusetts require that there shall be a valuation of es- tates within the Commonwealth to be made at least every ten years ; ^ the Constitution of Michigan requires the annual assess- ments which are made by township officers to be equalized by a State board, which reviews them for that purpose every five years ; ^ and the Constitution of Rhode Island requires the legis- lature " from time to time " to provide for new valuations of property for the assessment of taxes in such manner as they may deem best.^ Some other constitutions contain no provisions upon this subject ; but the necessity for valuation is nevertheless im- plied, though the mode of making it, and the periods at which it shall be made, are left to the legislative discretion. There are some kinds of taxes, liowever, that are not usually assessed according to the value of property, and some which could not be thus assessed. And there is probably no State which does not levy other taxes than those which are imposed upon property.* Every burden which the State imposes upon its citizens with a view to a revenue, either for itself or for any of the municipa;! governments, or for the support of the governmental machinery in any of the political divisions, is levied under the power of tax- ation, whether imposed under the name of tax, or under some other designation. The license fees which are sometimes required to be paid by those who follow particular employments are, when imposed for purposes of revenue, taxes ; ^ the tolls upon persons or property, for making use of the works of public improvement owned and controlled by the State, are a species of tax ; stamp duties when imposed are taxes ; and it is not uncommon, as we have already stated, to require that corporations shall pay a cer- tain sum annually, assessed according to the amount or value of their capital stock, or some other standard ; this mode being re- garded by the State as most convenient and suitable for the taxa- • day and at gome place fixed by the stat- i Constitution of Maine, art. 9, § 7 ; ute, or after notice publicly given. That Constitution of Mass., Part. 2, u. 1, § 1, such statutes are mandatory, and an as. art. 4. sessment made in disregard of them void, ^ Constitution of Mich., art. 14, § 13. see Thames Manuf. Co. v. Lathrop, 7 » Constitution of Rhode Island, art. 4, Conn. 550 ; Philips v. Stevens Point, 25 § 15. Wis 594 ; Walker v. Chapman, 22 Ala. * See Bright v. McCuUoch, 27 Ind. 116 ; Sioux City, &c. R. R. Co. v. Wash- 223 ; Ould v. Richmond, 23 Gratt. 464 ; ingt'on Co., 3 Neb. 30 ; Leavenworth Co. s. c. 14 Am. Rep. 139; Youngblood v. V. Lang, 8 Kan. 284 ; Griswold v. School Sexton, 32 Mich. 406 ; 8. c. 20 Am. Rep. District! 24 Mich. 262. On the general 654 ; Albrecht v. State, 8 Tex. App. 216 ; right to notice in tax cases, see the opin- s. c. -34 Am. Rep. 787. ion of Mr. Jnstice Field in the case of « See Ould v. Richmond, 23 Gratt. 464 ; San Mateo County v. Sou. Pao. R.,R. 8. c. 14 Am. Rep. 139; Wilmington o. Co., 13 Fed. Rep. 722; where the right is Macks, 86 N. C. 88; Lightburne v. Tax- strongly aflirmed. ing District, 4 Lea, 219. 612 CONSTITUTIONAL LIMITATIONS. [CH. XIV. tion of such organizations. It i? evident, therefore, that the express provisions, which are usual in State constitutions, that taxation upon property shall be according to value, do not include every species of taxation ; and that all special cases like those we have here referred to are, by implication, excepted. But in addition to these cases, there are others where taxes are levied directly upon property, which are nevertheless held not to be within the constitutional provisions. Assessments for the opening, making, improving, or repairing of streets, the draining Of swamps, and the like local works, have been generally made upon property, with some reference to the supposed benefits which the property would receive therefrom. Instead, therefore, of making the assessment include all the property of the munici- pal organization in which the improvement is made, a new and special taxing district is created, whose bounds are confined to the limits within which property receives a special and peculiar benefit, in consequence of the improvement. Even within this district the assessment is sometimes made by some other standard than that of value ; and it is evident that if it be just to create the taxing district with reference to special benefits, it would be equally just and proper to make the taxation within the district have reference to the benefit each parcel of property receives, rather than to its relative value. The opening or paving of a street may increase the value of all property upon or near it ; and it may be just that all such property should contribute to the expense of the improvement : but it by no means follows that each parcel of the property will receive from the improvement a benefit in proportion to the previous value. One lot upon the street may be greatly increased in value, another at a little dis- tance may be but slightly benefited ; and if no constitutional pro- vision interferes, there is consequently abundant reason why the tax levied within the taxing district should have reference, not to value, but to benefit. It has been objected, however, to taxation upon this basis, that inasmuch as the district upon which the burden is imposed is compelled to make the improvement for the benefit of the general public, it is, to the extent of the tax levied, an appropriation of private property for the public use ; and as the persons taxed, as a part of the public, would be entitled of right to the enjoyment of the improvement when made, such right of enjoyment could not be treated as compensation for the exaction which is made of them exclusively, and such exaction would therefore be opposed to those constitutional principles which declare the inviolability of private property. But those principles have no :^eference to CH. XIV.] THE POWER OF TAXATION. 613 the taking of property under legitimate taxation. When the Constitution provides that private property shall not be taken for public use without just compensation made therefor, it has refer- ence to an appropriation thereof under the right of eminent domain. Taxation and eminent domain indeed rest substantially on the same foundation, as each implies the taking of private property for the public use on compensation made ; but the com- pensation is different in the two cases. When taxation takes money for the public use, the taxpayer receives, or is supposed to receive, his just compensation in the protection which govern- ment affords to life, liberty, and property, in the public con- veniences which it provides, and in the increase in the value of possessions which comes from the use to which the government applies the money raised by the tax ; ' and these benefits amply support the individual burden. But if these special local levies are taxation, do they come under the general provisions on the subject of taxation to be found in our State constitutions ? The Constitution of Michigan directs that " the legislature shall provide an uniform rule of taxation, except on property paying specific taxes ; and taxes shall be levied upon such property as shall be prescribed by law ; " ^ and again : " All assessments hereafter authorized shall be on property at its cash value." ^ In the construction of these provisions the first has been regarded as confiding to the discre- tion of the legislature the establishment of the rule of uniformity by which taxation was to be imposed ; and the second as having reference to the annual valuation of property for the purposes of taxation, which it is customary to make in that State, and not to the actual levy of a tax. A local tax, therefore, levied in the city of Detroit, to meet the expense of paving a public street, and which was levied, not in proportion to the value of property, but according to an arbitrary scale of supposed benefit, has been held not invalid under the constitutional provision.* So the Constitution of Illinois declares that " the General As- sembly shall provide for levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property ; such value to be ascertained by some » People V. Mayor, &c. of Brooklyn, 4 « Art. 14, § 11. N. Y. 419 ; Williams v. Mayor, &c. of « Art. 14, § 12. Detroit, 2 Mich. 560 ; Scovill «. Cleve- * Williams v. Mayor, &c. of Detroit, 2 land 1 Ohio St. 126 ; Northern Indiana Mich. 560. And see Woodbridge v. De- R R Co ». Connelly, 10 Ohio St. 159; trolt, 8 Mich. 274; State v. Stout, 61 Ind. Washington Avenue, 69 Pa. St. 352; 143 ; Taylor «. Boyd, 63 Tex. 633. B. c. 8 Am. Rep. 256 j White ». People, 94 lU. 604. 614 CONSTITUTIONAL LIMITATIONS. [oh. XIV, person or persons to be elected or appointed in such manner as tlie General Assembly shall direct, and not otherwise," ^ . Johns Hopkins Hosp., 66 Md. Norris v. Waco, 67 Tex. 635; Washburn 1; Cleveland v. Tripp, 13 B. I 60; Davis u. Oshkosh, eOWis. 463.-. Thatthelegis- v. Lynchburg, 6 S. B. Rep. 230 (Va.). lature cannot annex to a vfTlage territory Notice is unnecessary if only a mathemat. not contiguous for the purpose of increas- ical calculation is involved. Amery :■. ingits revenues, see Smith v. Sherry, 50 Keokuk, 72 Iowa, 701. If an opportunity Wis. 210. for a hearing is given at some step of the 1 See Davis v. Gaines, 48 Ark. 370; proceedings it is enough; as in judicial State V. Dist. Court, 33 Minn. 236 ; War- proceedings to enforce the assessment, ren v. Chicago, 118 111. 329. Where an Hagar v. Reclamation Dist., Ill U. S. 701. assessment is to be made by benefits, '^ 8 Mich. 274, 301. See also Chicago property owners have an absolute right v. Lamed, 84 III. 203 ; Creote v. Chicago, to be heard, and a law for making it 56 III. 422. 618 CONSTITUTIONAL LIMITATIONS. [CH. XIV. without requiring the sum paid by one piece or kind of property, or by one person, to bear any relation whatever to that paid by another, is, it seems to me, to lay a forced contribution, not a tax, duty, or impost, within the sense of these terms, as applied to the exercise of powers by any enlightened or responsible govern- ment." In the case of Knowlton v. Supervisors of Rock County ,i an important and interesting question arose, involving the very point now under discussion. The Constitution of Wisconsin provides that "the rule of taxation shall be uniform," which, if we are correct in what we have already stated, is no more than an affirm- ance of a settled principle of constitutional law. The city of Janesville included within its territorial limits, not only the land embraced within the recorded plat of the village of Janesville and its additions, but also a large quantity of the adjacent farming or agricultural lands. Conceiving the owners of these lands to be greatly and unequally burdened by taxation for the support of the city government, the legislature passed an act declaring that " in no case shall the real and personal property within the terri- torial limits of said city, and not included within the territorial limits of the recorded plat of the village of Janesville, or of any additions to said village, which may be used, occupied, or re- served for agricultural or horticultural purposes, be subject to an annual tax to defray the current expenses of said city, exceeding one-half of one per cent; nor for the repair and building of roads and bridges, and the support of the poor, more than one-half as much on each dollar's valuation shall be levied for such purposes as on the property within such recorded plats, nor shall the same be subject to any tax for any of the purposes mentioned in § 3 of c. 5 of [the city charter] ; nor shall the said farming or gardening 1 9 Wis. 410. A tax case of much crimination in taxation between the more than ordinary interest and impor- property of natural persons and railroad tance is that of San Mateo County v. The corporations was an unwarrantable de- Southern Pacific E. R. Co., 13 Fed. Rep. parture from the rule of equality and 722, Justice Field delivering an elabor- uniformity in taxation ; that the provi- ate opinion, in the conclusions of which sion which establishes the discrimination Judge Sawyer concurred. The suit was is not due process of law, and is therefore brought for the recovery of a tax assessed opposed to the fourteenth amendment to upon the franchises, roadway, road-bed, the Constitution of the United States, rails, and rolling-stock of the defendant, which is equally efCectnal to protect By the Constitution of the State the real against an unwarranted exercise of the estate of private individuals is valued for taxing power as against any other un- taxation, with a deduction of all mort- lawful deprivation of property. It was gages and other liens, but the value of also aflBrmed that the State has no power, the property of railroads is to be assessed by its constitution or otherwise, to with- without any such deduction. It was held draw corporations from the guaranties of by these eminent judges that this dis- the Federal Constitution. CH. XIV.] THE POWER OP TAXATION. 619 land be subject to any tax, other than before mentioned, for any city purpose whatsoever." Under the charter the property of the city was liable to an annual tax of one per centum to defray the current expenses of the city ; and also an additional tax of such sum as the common council might deem necessary for the repair and building of roads and bridges, and for the support of the poor. Thus it will be perceived that the legislature within the same taxing district, — if the whole city is to be considered one district only, — undertook to provide that a portion of the property should be taxed at one rate in proportion to value, and another portion at a much lower rate ; while from taxation for certain proper local purposes the latter class was exempted altogether. " It was contended in argument," say the court, " that as those provisions fixed one uniform rate without the recorded plats, and another within them, thus taxing all the property without alike, and all within alike, they do not infringe the constitution. In other words, that for the purpose of taxation, the legislature have the right arbitrarily to divide up and classify the property of the citizens, and, having done so, they do not violate the constitutional rule of uniformity, provided all the property within a given class is rated alike. " The answer to this argument is, that it creates different rules of taxation, to the number of which there is no limit, except that fixed by legislative discretion, while the constitution establishes but one fixed, unbending, uniform rule upon the subject. It is believed that if the legislature can, by classification, thus arbi- trarily, and without regard to value, discriminate in the same municipal corporation between personal and real property within, and personal and real property without a recorded plat, they can also by the same means discriminate between lands used for one purpose and those used for another, such as lands used for growing wheat and those used for growing corn, or any other, crop ; meadow-lands and pasture-lands, cultivated and unculti- vated lands ; or they can classify by the description, such as odd- liumbered lots and blocks and even-numbered ones, or odd and even numbered sections. Personal property can be classified by its character, use, or description, or, as in the present case, by its location, and thus the rules of taxation may be multipliq^ to an extent equal in number to the different kinds, uses, descriptions, and locations of real and personal property. We do not see why the system may not be carried further, and the classification be made by the character, trade, profession, or business of the own- ners. For certainly this rule of uniformity can as well be applied 620 CONSTITUTIONAL LIMITATIONS. [CH. XIV. to such a classification as any other, and thus the constitutional provision be saved intact. Such a construction would make the constitution operative only to the extent of prohibiting the legis- lature from discriminating in favor of particular individuals, and would reduce the people, while considering so grave and impor- tant a proposition, to the ridiculous attitude of saying to the legis- lature, ' You shall not discriminate between single individuals or corporations ; but you may divide the citizens up into different classes, as the followers of different trades, professions, or kinds of business, or as the owners of different species or descriptions of property, and legislate for one class, and against another, as much as you please, provided you serve all of the favored or un- favored classes alike ; ' thus affording a direct and solemn con- stitutional sanction to a system of taxation so manifestly and grossly unjust that it will not find an apologist anywhere, at least outside of those who are the recipients of its favor. "We do not believe the framers of that instrument intended such a construc- tion, and therefore cannot adopt it." ^ The principle to be deduced from the Iowa and Wisconsin cases, assuming that they do not in any degree conflict, seems to be this: The legislature cannot arbitrarily include within the limits of a village, borough, or city, property and persons not properly chargeable with its burdens, and for the sole purpose of increasing the corporate revenues by the exaction of the taxes. But whenever the corporate boundaries are established, it is to be understood that whatever property is included within those limits has been thus included by the legislature, because it justly be- longs there, as being within the circuit which is benefited by the local government, and which ought consequently to contribute to its burdens. The legislature cannot, therefore, after having al- ready, by including the property within the corporation, declared its opinion that such property should contribute to the local gov- ernment, immediately turn about and establish a basis of taxation 1 Per Dixon, Ch. J., 9 Wis. 410, 421. paved with the Nicholson pavement at the Besides the other cases referred to, see, expense of the adjoining owners, when on this same general subject, Lin Sing v. the owners of the larger part of the front- Washburn, 20 Cal. 584; State v. Mer- age should petition therefor. Anamend- chants' Ins. Co., 12 La. Ann. 802 ; Adams atory act authorized it as to a portion of V. Somerville, 2 Head, 363 ; McComb v. a certain street without such a petition j Bell, 2 5^nn. 295; Attorney-General «. thus permitting a special improvement on Winnebago Lake & Fox Eiver P. R. Co., that street, at the expense of the owners 11 Wis. 35 ; Weeks v. Milwaukee, 10 of adjoining lote, on a different principle Wis. 242 ; O'Kane a. Treat, 25 III. 557 ; from that adopted for the city generally. Philadelphia Associ»tion, &c. v. Wood, 39 In Howell v. Bristol, 8 Bush, 493, this Pa. 73 ; Sacramento v. Crocker, 16 Cal. amendment was held inconsistent with the 119. There was a provision in the char- fundamental principles of taxation, and ter of Covington that a street might be consequently void. CH. XIV.] THE POWER OF TAXATION. 621 which assumes that the property is not in fact urhan property at all, but is agricultural lands, and should be assessed accordingly. The rule of apportionment must be uniform throughout the taxing district, applicable to all alike ; but the legislature have no power to arrange the taxing districts arbitrarily, and without reference to the great fundamental principle of taxation, that the burden must be borne by those upon whom it justly rests. The Kentucky and Iowa decisions hold that, in a case where they have manifestly and unmistakably done so, the courts may interfere and restrain the imposition of municipal burdens on property which does not properly belong within the municipal taxing district at all. It must be manifest, however, that the effect of the decisions in the States last referred to is to establish judicially two or more districts within a municipality where the legislature has established one only ; and as this is plainly a legislative function, it would seem that the legislature must be at least as competent to establish them directly as any court can be to do the same thing indirectly. And in Missouri, Kentucky, and Pennsylvania, no difficulty has been found in sustaining legislation which discriminated in taxa- tion between " rural " lands and others within the same city.i This rule of uniformity has perhaps been found most difficult of application in regard to those cases of taxation which are com- monly known under the head of assessments, and which are made either for local improvement and repair, or to prevent local causes resulting in the destruction of health or property. In those cases where it has been held that such assessments were not covered by the constitutional provision that taxation should be laid upon property in proportion to value, it has,. nevertheless, been decided that the authority to make them must be- referred to the taxing power, and not to the police power of the State, under which side- walks have sometimes been ordered to be constructed. Apportion- ment of the burden was therefore essential, though it need not be made upon property in proportion to its value. But the question then arises : What shall be the rule of apportionment ? Can a 1 Benoist v. St. Louis, 19 Mo. 179 ; cultural land in tracts of ten acres or Henderson u. Lambert, 8 Bush, 607 ; more brought within a city may be Parkland v. Gains, 11 S. W. Rep. 649 exempted from city taxes: Leicht v. (Ky.); SerrlU v. Philadelphia, 88 Pa. St. Burlington, 73 Iowa, 29; if brought in 355. And see Gillette v. Hartford, 31 after the passage of an act allowing Conn. 851. In Missouri such land, though it. Perkins v. Burlington, 77 Iowa, 553. taxed at a different rate, must be valued Under Indiana statutes such land may like other land. State v. O'Brien, 89 Mo. not be taxed for general purposes above 631. In Utah it is denied that such land township rates, but is liable for special within the limits, but outside the city as assessments. Dickerson v. Franklin, 112 built, can be subjected to city taxes. Ind. 178. Terr. v. Daniels, 22 Pac. Rep. 169. Agri- 622 CONSTITUTIONAL LIMITATIONS. [CH. XIV, street be ordered graded and paved, and the expense assessed ex- clusively upon the property which, in the opinion of the assessors, shall be peculiarly benefited thereby, in proportion to such benefit ? Or may a taxing district be created for the purpose, and the ex- pense assessed in proportion to the area of the lots ? Or may the street be made a taxing district, and the cost levied in proportion to the frontage ? Or may each lot-owner be required to grade and pave in front of his lot ? These are grave questions, and they have not been found of easy solution. The case of The People v. The Mayor, &c. of Brooklyn,^ is a leading case, holding that a statute authorizing a municipal cor- poration to grade and improve streets, and to assess the expense among the owners and occupants of lands benefited by the im- provement, in proportion to the amount of such benefit, is a con- stitutional and valid law. The court in that case concede that taxation cannot be laid without apportionment, but hold that the basis of apportionment in these cases is left by the constitution with the legislature. The application of any one rule or principle of apportionment to all cases would be manifestly oppressive and unjust. Taxation is sometimes regulated by one principle, and sometimes by another ; and very often it has been apportioned without reference to locality, or to the taxpayer's ability to con- tribute, or to any proportion between the burden and the benefit. " The excise laws, and taxes on carriages and watches, are among the many examples of this description of taxation. Some taxes affect classes of inhabitants only. All duties on imported goods are taxes on the class of consumers. The tax on one imported article falls on a large class of consumers, while the tax on an- other affects comparatively a few individuals. The duty on one article consumed by one class of inhabitants is twenty per cent of its value, while on another, consumed by a different class, it is forty per cent. The duty on one foreign commodity is laid for the purpose of revenue mainly, without reference to the ability of its consumers to pay, as in the case of the duty on salt. Tlie duty on another is laid for the purpose of encouraging domestic manu- factures of the same article, thus compelling the consumer to pay a higher price to one man than he could otherwise have bought the article for from another. These discriminations may be im- politic, and in some cases unjust; but if the power of taxation upon importations had not been transferred by the people of this State to the federal government there could have been no pretence for declaring them to be unconstitutional in State legislation. 1 4 N. Y. 419, 427 ; reversing same case, 6 Barb. 209. CH. XIV.] THE POWER OF TAXATIWiT. 623 " A property tax for the general purposes of the government, either of the State at large or of a county,. city, or other district, is regarded as a just and equitable tax. The reason is obvious. It apportions the burden according to the benefit more nearly than any other inflexible rule of general taxation. A rich man derives more benefit from taxation, in the protection and improve- ment of his property, than a poor man, and ought therefore to pay more. But the amount of each man's benefit in general taxation cannot be ascertained and estimated with any degree of certainty ; and for that reason a property tax is adopted, instead of an esti- mate of benefits. In local taxation, however, for special pur- poses, the local benefits may in many cases be seen, traced, and estimated to a reasonable certainty. At least this has been sup- posed and assumed to be true by the legislature, whose duty it is to prescribe the rules on which taxation is to be apportioned, and whose determination of this matter, being within the scope of its lawful power, is conclusive." The reasoning of this case has been generally accepted as satis- factory, and followed in subsequent cases.^ 1 Scoville V. Cleveland, 1 Ohio St. 126 ; Hill V. Higdon, 5 Ohio St. 243 ; Marion v. Epler, 5 Ohio St. 250; Maloy v. Mari- etta, 11 Ohio St. 636 ; City of Peoria v. Kidder, 26 111. 351 ; Reeves v. TreaBurer of'Wood Co., 8 Ohio St. 383; Garrett v. St. Louis, 25 Mo. 505 ; Uhrig v. St. Louis, 44 Mo. 458 ; Bradley v. MoAtee, 7 Bush, 667 ; 8. c. 3 Am. Rep. 309 ; Jones v. Bos- ton, 104 Mass. 461 ; Sessions v. Crunkil- ton, 20 Ohio St. 349 ; State v. Fuller, 34 N. J. 227 ; Holton v. Milwaukee, 31 Wis. 27; McMasters v. Commonwealth, 3 Watts, 292 ; Allentown v. Henry, 73 Pa. St. 404 ; Weber v. Reinhard, 73 Pa. St. 370 ; s. c. 13 Am. Eep. 747 ; Livingston v. New York,- 8 Wend. 85 ; b. o. 22 Am. Dec. 622 ; Wright V. Boston, 9 Cush. 233 ;' Jones u. Boston, 104 Mass. 461 ; Nichols v. Bridgeport, 23 Conn. 189 ; Cone v. Hartford, 28 Conn. 363 ; Alexander v. Baltimore, 5 Gill, 383; Howard v. The Church, 18 Md. 451 ; Hoyt ». East Saginaw, 19 Mich. 39 ; Sheley w. Detroit, 45 Mich. 431 ; Burnett v. Sacra- mento, 12 Cal. 76 ; La Fayette v. Fowler, 34 Ind. 140. The right to assess by bene- fits has been denied in South Carolina. State V. Charleston, 12 Rich. 702. The legislation In Ohio on the subject has au- thorized the cities and villages, in open- ing and improving streets, to assess the expense either upon the lots abutting on the street in proportion to the street front, or upon the lands in proportion to their assessed value. In a case where the former mode was resorted to, and an as- sessment made upon property owped by the Northern Indiana Railroad Company for its corporate purposes. Peck, J., thus states and answers an objection to the validity of the tax : " But it is said that assessments, as distinguished from gen- eral taxation, rest solely upon the idea of equivaknts, — a compensation proportioned to the special benefits derived from the improvement, and that, in the case at bar, the railroad company is not, and in the nature of things cannot be, in any degree benefited by the improvement. It is quite true that the right to impose such special taxes is based upon a presumed equivalent; but it by no means follows that there must be in fact such full equiv- alent in every instance, or that its ab- sence will render the assessment invalid. The rule of apportionment, whether by the front foot or a percentage upon the assessed valuation, must be uniform, af- fecting all the owners and all the prop- erty abutting on the street alike. One rule cannot be applied to one owner, and a different rule to another owner. One could not be assessed ten per cent, an- other five, another three, and another left 624 CONSTITUTIONAL LIMITATIONS. [CH. XIV. On the other hand, and on the like reasoning, it has been held equally competent to make the street a taxing district, and assess the expense of the improvement upon the lots in propor- tion to the frontage.^ Here also is apportionment by a rule altogether unassessed because he was not in fact benefited. It is manifest that the actual benefits resulting from the im- provement may be as various almost as the number of the owners, and the uses to which the property may be applied. No general rule, therefore, could be laid down which would do equal and exact justice to all. The legislature have not attempted so vain a thing, but have pre- scribed two different modes in which the assessment may be made, and left the city authorities free to adopt either The mode adopted by the council becomes the statutory equivalent for the benefits conferred, although in fact the burden imposed may greatly preponderate. In such case, if no fraud intervene, and the assessment does not substantially exhaust the owner's interest in the land, his rem- edy would seem to be to procure, by a timely appeal to the city authorities, a reduction of the special assessment, and its imposition, in whole or in part, upon the public at large." Northern Indiana R. K. Co. «. Connelly, 10 Ohio St. 159, 165. And see Howell t;. Bristol, 8 Bush, 493. It is competent to provide for as- sessing benefits upon the owner instead of the land. In re Centre St., 115 Pa. St. 247. As to repaving, see ante, 615, note. The legislative determination that certain iand is benefited is conclusive. Only the question of apportionment remains open. Spencer v. Merchant, 125 U. S. 345; Pacific Bridge Co. v. Kirkham, 64 Cal. 619. The finding of benefits by a common council is conclusive unless palpably un- just. Paulson V. Portland. 16 Oreg. 450; Little Bock v. Katzenstein, 12 S. W. Rep. 198 (Ark.) ; Pueblo ». Robinson, 21 Pac. Rep. 899 (Col.). In ordering a local as- sessment the common council may deter- mine that the benefits to property within the district will equal the cost of the im- provement. Cook V. Slocum, 27 Minn. 609. If a council has made an assess- ment district, a jury in apportioning ben- efits must impose some on each parcel in it. Rentz v. Detroit, 48 Mich. 644. Contra, Kansas City v. Baird, 98 Mo. 215. But a wholly arbitrary apportionment that could not possibly be just would be void. Thomas v. Gain, 35 Mich. 165. A council cannot be empowered to impose expense as it may "deem equitable and just." Barnes v. Dyer, 50 Vt. 419. 1 Williams k' Detroit, 2 Mich. 560; Northern Indiana R. R. Co. v. Connelly, 10 Ohio St. 169; Lumsden v. Cross, 10 Wis. 282. And see St. Joseph v. O'Dbn- oghue, 31 Mo. 345 ; Burnett v. Sacra- mento, 12 Cal. 76 ; Scoville v. Cleveland, 1 Ohio St. 126 ; Hill v. Higdon, 5 Ohio St. 243 ; Ernst v. Kunkle, 5 Ohio St. 620 ; Hines v. Leavenworth, 3 Kan. 186; Magee v. Commonwealth, 46 Pa. St. 358 ; Wray v. Pittsburg, 46 Pa, St. 365 ; Palmer o. Stumph, 29 Ind. 329; White V. People, 94 111. 604 ; Wilbur ». Spring- field, 123 111. 395; Davis v. Lynchburg, 6 S. E. Rep. 230 (Va.); Farrar v. St. Louis, 80 Mo. 379; Taylor i>. Boyd, 63 Tex. 633 ; O'Reilley v. Kingston, 114 N. Y. 439; although the assessment ex- ceeds the value of a long, shallow strip assessed. MoCormick's Est. v. Harris- burg, 18 Atl. Rep. 126 (Pa.). In Ham- mett V. Philadephia, 65 Pa. St. 146 ; s. c. 3 Am. Rep. 616, while the cases here cited are approved, it is denied that a street already laid out and in good con- dition can be taken and improved for a public drive or carriage-way at the ex- pense of the adjacent owners ; this not being an improvement for local but for general purposes. See Washington Avenue, 69 Pa. St. 352; s. c. 8 Am. Rep. 265; Orphan Asylum's Appeal, 111 Pa. St. 135 ; Williamsport v. Beck, 128 Pa. St. 147. But a borough may cause a sidewalk to be relaid at the cost of an abutter. Smith v. Kingston, 120 Pa. St. 357. Compare Allen v. Drew, 44 Vt. 174 (case of water-rents) ; Willard v. Presbury, 14 Wall. 676; Hoyt v. East Saginaw, 19 Mich. 39; s. c. 2 Am. Rep. 76 ; La Fayette v. Fowler, 34 Ind. 140 ; Chambers v. Satterlee, 40 Cal. 497 ; Brad- lee V. McAtee, 7 Bush, 667 ; s. c. 3 Am. Rep. 809. In Washington Avenue, 69 Pa. St. 352 ; 8. c. 8 Am. Rep. 255, it is denied that this principle can be applied to the country and to farming lands. CH. XIV.] THE POWEE OF TAXATION. 625 which approximates to what is just, but which, like any other rule that can be applied, is only an approximation to absolute equality. But if, in the opinion of the legislature, it is the proper rule to apply to any particular case, the courts must en- force it. But a very different case is presented when the legislature undertakes to provide that each lot upon a street shall pay the whole expense of grading and paving the street along its front. For while in such a case there would be something having the outward appearance of apportionment, it requires but slight ex- amination to discover that it is a deceptive semblance only, and that the measure of equality which the constitution requires is entirely wanting. If every lot-owner is compelled to construct the street in front of his lot, his tax is neither increased nor diminished by the assessment upon his neighbors; nothing is divided or apportioned between him and them ; and each particu- lar lot is in fact arbitrarily made a taxing district, and charged with the whole expenditure therein, and, thus apportionment avoided. If the tax were for grading the street simply, those lots which were already at the established grade would escape altogether, while those on either side, which chanced to be above and below, must' bear the whole burden, though no more bene- fited by the improvement than the others.^ It is evident, there- fore, that a law for making assessments on this basis could not have in view such distribution of burdens in proportion to bene- fits as ought to be a cardinal idea in every tax-law.^ It would be nakedly an arbitrary command of the law to each lot-owner to construct the street in front of his lot at his own expense, accord- ing to a prescribed standard ; and a power to issue such com- Agnew, J., says : " To apply it to the tioned in Arkansas : Peay v. Little Bock, coiutry, or to farm lands, would lead to 82 Ark. 31 ; Monticello v. Banks, 48 Ark. such inequality and injustice as to deprive 261 ; nor in Tennessee. McBean v. Chand- it of all soundness as a rule, or as a sub- ler, 9 Heisk, 349. stitute for a fair and impartial valuation ^ In fact, lots above and below a. Providence, 6 R. I. 235 ; Patterson V. Society, &c., 24 N. J. 385; Cincinnati College V. State, 19 Ohio, 110; Brewster CH. XIV.] THE POWEK OF TAXATION. 633 the State may cause taxes to be levied from motives of char- ity or gratitude, so for the like reasons it may exempt the objects of charity and gratitude from taxation.^ Property is sometimes released from taxation by contract between the State and corpo- rations, and specified occupations are sometimes charged with specific taxes in lieu of all taxation of their property. A broad field is here opened to legislative discretion. As matter of State policy it might also be deemed proper to make general exemption of sufiicient of the tools of trade or other means of support, to enable the poor man, not yet a pauper, to escape becoming a pub- lic burden. There is still ample room for apportionment after all such exemptions have been made. The constitutional require- ment of equality and uniformity only extends to such objects of taxation as the legislature shall determine to be properly subject to the burden.2 The power to determine the persons and the objects to be taxed is trusted exclusively to the legislative de- partment ; ^ but over all those objects the burden must be spread or it will be unequal and unlawful as to such as are selected to make the payment.* V. Hough, 10 N. H. 138 ; Seymour ». Hart- ford, 21 Conn. 481 ; Palmer v. Stumph, 29 Ind. 329 ; Peoria v. Kidder, 26 111. 351 ; Hale V. Kenosha, 29 Wis. 599 ; Seamen's Friend Society v. Boston, 116 Mass. 181 ; Orange, &c. K. R. Co. v. Alexandria, 17 Gratt. 176; Lima v. Cemetery Ass., 42 Ohio St. 128; State v. Kansas City, 89 Mo. 34 ; Chicago v. Baptist Union, 115 HI. 245. Contra, Trustees M. E. Ch. v. At lanta, 76 Ga. 181, and see Swan Point Cem. V. Tripp, 14 R. 1. 199. Land held in trust for the State is exempt. People V. Trustees of Schools, 118 111. 52. The customary constitutiooal inhihition of any law respecting an establishment of reli- , glon, &c., is not violated by an exemption of church property from taxation. Trus- tees of Griswold College v. State, 46 Iowa, 275 ; s. c. 26 Am. Rep. 138. 1 But it is not competent to grant ex- emptions from taxation based on sex or age, — e. g., widows, maids, and female minors, — and an act attempting to make such exemptions is void. State v. In- dianapolis, 69 Ind. 875 ; s. c. 35 Am. Rep. 223. 2 State V. North, 27 Mo. .464 ; People V. Colman, 3 Cal. 46 ; Durach's Appeal, 62 Pa. St. 491; Brewer Brick Co. v. Brewer, 62 Me. 62 ; s. o. 16 Am. Rep. 395. 3 Wilson V. Mayor, &o. of New York, 4 E. D. Smith, 675 ; Hill v. Higdon, 5 Ohio St. 243 ; State v. Parker, 33 N. J. 313 ; State v. County Court, 19 Ark. 360. Classes of property as well as classes of persons may be exempted. Butler's Ap- peal, 73 Pa. St. 448 ; Sioux City v. School District, 55 Iowa, 150. Notwithstanding a requirement that " the rule of taxation shall be uniform," the legislature may levy specific State taxes on corporations, and exempt them from municipal taxa- tion. So held on the ground of stare decisis. Kneeland v. Milwaukee, 15 Wis. 454. See 111. Cent. R. R. Co. v. McLean Co., 17 111. 291 ; New Orleans ». Savings Bank, 31 La. Ann. 826 ; Hunsaker v. Wright, 30 111. 146; Portland v. Water Co., 67 Me. 135. * In the case of Weeks v. Milwaukee, 10 Wis. 242, a somewhat peculiar exemp- tion was made. It appears that several lots in the city upon which a new hotel was being constructed, of the value of from $150,000 to $200,000, were purposely omitted to be taxed, under the direction of the Common Council, " in view of the great public benefit which the construc- tion of the hotel would be to the city." Paine, J., in delivering the opinion of the court, says : " I have no doubt this ex- emption originated in motives of gener- osity and public spirit. And perhaps the 634 CONSTITUTIONAL LIMITATIONS. [CH. XIV. In somie of the States it has been decided that the particular provisions inserted in their constitutions to insure uniformity are SO worded as to forbid exemptions. Thus the late Constitution of Illinois provided that " the General Assembly shall provide for levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property." ^ Under this it was held that exemption by the legislature of per- sons residing in a city from a tax levied to repair roads beyond same motives should induce the taxpay- ers of the city to submit to the slight in- crease of the tax thereby imposed on each, without questioning its strict legal- ity. Bat they cannot be compelled to. No man is obliged to be more generous than the law requires, but each may stand strictly upon his legal rights. That this exemption was illegal, was scarcely contested. I shall therefore make no effort to show that the Common Council had no authority to suspend or repeal the general law of the State, declaring what property shall be taxable and what ex- empt. But the important question pre- sented is, whether, conceding it to have been entirely unauthorized, it vitiates the tax assessed upon other property. And upon this question I .hink the follow- ing rule is established, both by reason and authority. Omissions of this character, arising from mistakes of fact, erroneous computations, or errors of judgment on the part of those to whom the execution of the taxing laws is entrusted, do not neces- sarily vitiate the whole tax. But inten- tional disregard of those laws, in such manner as to impose illegal taxes on those who are assessed, does. The first part of the rule is necessary to enable taxes to be collected at all. The execution of these laws is necessarily entrusted to men, and men are fallible, liable to frequent mistakes of fact and errors of judgment. If such errors, on the part of those who are attempting in good faith to perform their duties, should vitiate the whole tax, no tax could ever be collected. And therefore, though they sometimes increase improperly the burdens of those paying taxes, that part of the rule which holds the tax not thereby avoided is absolutely essential to a continuance of government. But it seems to me clear that the other part is equally essential to the just pro- tection of the citizen. If those executing these laws may deliberately disregard them, and assess the whole tax upon a part only of those who are liable to pay it, and have it still a legal tax, then the laws afford no protection, and the citizen is at the mercy of those officers, who, by being appointed to execute the laws, would seem to be thereby placed beyond legal control. I know of no considerations of public policy or necessity that can justify carrying the rule to that extent. And the fact that in this instance the disregard of the law proceeded from good motives ought not to affect the decision of the question. It is a rule of law that is to be established ; and, if established here because the motives were good, it would serve as a precedent where the motives were bad, and the power usurped for purposes of oppression." pp. 263-265. See also Henry v. Chester, 15 Vt. 460 ; State V. Collector of Jersey City, 24 N. J. 108 ; Insurance Co. w.Yard, 17 Pa. St. 331 ; Williams v. School District, 21 Pick. 75 ; Hersey v.. Supervisors of Milwaukee, 16 Wis. 185; Crosby v. Lyon, 37 Cal. 242; Primm v. Belleville, 59 111. 142 ; Adams V. Beman, 10 Kan. 37 ; Brewer Brick Co. V. Brewer, 62 Me. 62 , s. c. 16 Am. Rep. 895. But it seems that an omission of property from the tax-roll by the as- sessor, unintentionally, through want of judgment and lack of diligence and busi- ness habits, will not invalidate the roll. Dean v. Gleason, 16 Wis. 1 ; Eicketts v. Spraker, 77 Ind. 871. In Soofield v. Watkins, 22 lU. 66, and Merritt v. Farris, 22 111. 803, it appears to be decided that even in the case of intentional omissions the tax-roll would not be invalidated, but the parties injured would be left to their remedy against the assessor. See also Dunham v. Chicago, 55 111. 859 ; State v. Maxwell, 27 La. Ann. 722 ; New Orleans V. Pourohy, 30 La. Ann. pt. 1, 910. Com- pare Francis V. Railroad Co., 19 Kan. 803. 1 Art. 9, § 2, of the old Constitution. CH. XIV.] THE POWEK OF TAXATION. 635 the city limits, by township authority, — the city being embraced within the township which, for that purpose, was the taxing dis- trict, — was void.^ It is to be observed of these cases, however, that they would have fallen within the general principle laid down in Knowlton v. Supervisors of Rock Co.,^ and the legisla- tive acts under consideration might, if that case were followed, have been declared void on general principles, irrespective of the peculiar wording of the constitution. These cases, notwithstand- ing, as well as others in Illinois, recognize the power in the legis- lature to commute for a tax, or to contract for its release for a consideration. The Constitution of Ohio provides ^ that " laws shall be passed taxing by a uniform rule all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise ; and also all real and personal property, according to its true value in money." Under this section it was teld not competent for the legislature to provide that lands within the limits of a city should not be taxed for any city purpose, except roads, unless the same were laid off into town lots and recorded as such, or into out-lots not exceeding five acres each.* Upon this case we should make the same remark as upon the Illinois cases above referred to. The Constitution of California provides that " all property in th« State shall be taxed in proportion to its value ; " and this is held to preclude all exemptions of private property when taxes are laid for either general or local purposes.^ It is, moreover, essential to valid taxation that the taxing offi- cers be able to show legislative authority for the burden they assume to impose in every instance. Taxes can only be voted by the people's representatives. Tliey are in every instance an ap- propriation by the people to the government, which the latter is to expend in furnishing the people protection, security, and such facilities for enjoyment as it properly pertains to government to provide. This principle is a phief corner-stone of Anglo-Saxon liberty ; and it has operated not only as an important check on government, in preventing extravagant expenditureSj as well as unjust and tyrannical action, but it has been an important guar- anty of the right of private property. Property is secure from the lawless grasp of the government, if the means of existence of 1 O'Eane v. Treat, 25 III. 657 ; Hun- * Zanesville v. Auditor of Muskingum Baker v. Wright, 30 IIL 146. See also County, 5 Ohio St. 589. See also Fields Trustees v. McConnell, 12 111. 138 ; Madi- v. Com'rs of Highland Co, 36 Ohio St. son County v. People, 58 III. 456 ; Dunham 476. V. Chicago, 55 III. 357 ; Louisville, &o. R. » People v. McCreery, 34 Cal. 432 ; R. Co. V. State, 8 Heisk. 663, 744. Crosby v. Lyon, 37 Cal. 242 ; People v. 2 9 Wis. 410. See ante, p. 618. Eddy, 43 Cal. 331 ; s. c. 13 Am. Rep. 143 « Art. 12, § 2. 636 CONSTITUTIONAL LIMITATIONS. [OH. XIV. the government depend upon the voluntary grants of those who own the property. Our ancestors coupled their grants with de- mands for the redress of grievances : but in modern times the surest protection against grievances has been found to be to vote specific taxes for the specific purposes to which the people's representatives are willing they shall be devoted ; ^ and the per- sons exercising the functions of government must then become petitioners if they desire money for other objects. And then these grants are only made periodically. Only a few things, such as the salaries of officers, the interest upon the public debt, the support of schools, and the like, are provided for by permanent laws ; and not always is this done. The government is depend- ent from year to year on the periodical vote of supplies. And this vote will come from representatives who are newly chosen by the people, and who will be expected to reflect their views regarding the public expenditures. State taxation, therefore, is not likely to be excessive or onerous, except when the people, in times of financial ease, excitement, and inflation, have allowed the incurring of extravagant debts, the burden of which remains after the excitement has passed away. But it is as true of the political divisions of the State as it is of the State at large, that legislative authority must be shown for every levy of taxes."'^ The power to levy taxes by these divisions comes from the State. The State confers it, and at the same time exercises a parental supervision by circumscribing it. In- deed, on general principles, the power is circumscribed by the rule that the taxation by the local authorities can only be for local purposes.^ Neither the State nor the local body can authorize the imposition of a tax on the people of a county or town for an object in which the people of the county or town are not concerned. And by some of the State constitutions it is expressly required that the State, in creating municipal corporations, shall restrict 1 Hoboken v. Phinney, 29 N. J. 65. a city cannot tax its own bonds. Macon 2 State u. Charleston, 2 Speers, 623 ; v. Jones, 67 Ga. 489. Where a city has Columbia v. Guest, 3 Head, 413 ; Bangs power to issue securities, it has implied V. Snow, 1 Mass. 181 ; Clark v. Daven- power to tax to meet them, unless there port, 14 Iowa, 494 ; Burlington v. Eellar, is a clear limitation upon its power so to 18 Iowa, 59; Mays v. Cincinnati, 1 Ohio do. Quincy v. Jackson, 113 U. S. 332. St. 268; Richmond v. Daniel, 14 Gratt. And, if a city is dissolved, the legislature 386; Simmons v. Wilson, 66 N. C. 336; may tax for like purpose, although thus Lott V. Boss, 38 Ala^. 156 ; Lisbon v. Bath, it lays a higher tax than it has the right, 21 N. H. 319 ; Daily v. Swope, 47 Miss, under ordinary circumstances, to impose. 367. The same rule applies to laying Hare v. Kennerly, 83 Ala. 608. special assessments. Augusta v. Mur- s Foster ». Kenosha, 12 Wis. 616. See phey, 79 6a, 101 ; Vaughn v. Ashland, 71 ante, p. 263. Wis. 502. Without express authority CH. XIV.] THE POWER OF TAXATION. C37 their power of taxation over the subjects within their control. These requirements, however, impose an obligation upon the legislature which only its sense of duty can compel it to perform.^ It is evident that if the legislature fail to enact the restrictive legislation, the courts have no power to compel such action. Whether in any case a charter of incorporation could be held void on the ground that it conferred unlimited powers of taxation, is a question that could not well arise, as a charter is probably never granted which does not impose some restrictions ; and where that is the case, it must be inferred that those were all the restrictions the legislature deemed important, and that therefore the constitu- tional duty of the legislature has been performed.^ 1 In Hill V. Higdon, 5 Ohio St. 243, 248, Ranney, J., says of this provision: " A failure to perform this duty may be of very serious import, but lays no foun- dation for judicial correction." And see Maloy V. Marietta, 11 Ohio St. 636. 2 The Constitution of Ohio requires the legislature to provide by general laws for the organization of cities and in- corporated villages, and to restrict their power of taxation, assessment, &o. The general law authorizing the expense of grading and paving streets to be assessed on the grounds bounding and abutting on the street, in proportion to the street front, was regarded as being passed in at- tempted fulfilment of the constitutional duty, and therefore valid. The chief re- striction in the case was, that it did not authorize assessment in any other or dif- ferent mode from what had been custo- mary. Northern Indiana R. R. Co. v. Connelly, 10 Ohio St. 159. The statute also provided that no improvement or repair of a street or highway, the cost of which was to be assessed upon the own- ers, should be directed without the con- currence of two-thirds of the members elected to the municipal council, or un- less two-thirds of the owners to be charged should petition in writing there^ for. In Maloy v. Marietta, 11 Ohio St. 636, 639, Peck, J., says : " This may be said to be a very imperfect protection; and in some cases will doubtless prove to be so ; but it is calculated and designed, by the unanimity or the publicity it re- quires, to prevent any flagrant abuses of the power. Such is plainly its object; and we know of no rights conferred upon courts thus to interfere with the exercise of a legislative discretion which the con- stitution has delegated to the law-making power." And see Weeks v. Milwaukee, 10 Wis. 242. The Constitution of Miclii- gan requires the legislature, in providing for the incorporation of cities and villages, to " restrict their power of taxation," &c. The Detroit Metropolitan Police Law made it the duty of the Board of Police to prepare and submit to the city con- troller, on or before the first day of May in each year, an estimate in detail of the cost and expense of maintaining the police department, and the Common Council was required to raise the same by general tax. These provisions, it was claimed, were in conflict with the constitution, because no limit was fixed by them to the estimates that might be made. In People v. Ma- haney, 13 Mich. 481, 498, the court say : " Whether this provision of the constitu- tion can be regarded as mandatory in a sense that would make all charters of municipal corporations and acts relating thereto which are wanting in this limita- tion invalid, we do not feel called upon to decide in this case, since it is clear that a limitation upon taxation is fixed by the act before us. The constitution has not prescribed the character of the restriction which shall be imposed, and from the na- ture of the case it was impossible to do more than to make it the duty of the legislature to set some bounds to a power so liable to abuse. A provision which, like the one complained of, limits the power of taxation to the actual expenses as estimated by the governing board, after first limiting the power of the board to incur expense within narrow limits, is as much a restriction as if it confined tlie 638 CONSTITUTIONAL LIMITATIONS^ [GH. XIV. When, however, it is said to be essential to valid taxation that . there be legislative authority for every tax that is laid, it is not meant that the legislative department of the State must have passed upon the necessity and propriety of every particular tax ; but those who assume to seize the property of the citizen for the satisfaction of the tax must be able to show that that particular tax is authorized, either by general or special law. The poWer inherent in the government to tax lies dormant until a constitu- tional law has been passed calling it into action, and is then vitalized only to the extent provided by the law. Those, there- fore, who act under such a law should be careful to keep within its limits, lest they remove from their acts tlie shield of its pro- tection. While we do not propose to enter upon any attempt to point out the various cases in which a failure to obey strictly the requirements of the law will render the proceedings void, — in regard to which a diversity of decision would be met with, — we think we shall be safe in saying that, in cases of this description,, which propose to dispossess the citizen of his property against his will, not only will any excess of taxation beyond what the law allows render the proceedings void, but any failure to comply with such requirements of the law as are made for the protectioa. of the owner's interest will also render them void. There are several reported cases in which the taxes levied were slightly in excess of legislative power, and in which it was urged in support of the proceedings, that the law ought not to take notice of such unimportant matters; but the courts have held that an excess of jurisdiction is never unimportant. In one case in Maine, the excess was eighty-seven cents only in a tax of $225.75, but it was deemed sufficient to render the proceedings void. Said Mellen, Ch. J., delivering the opinion of the court : " It is contended that the sum of eighty-seven cents is such a trifle as to fall within the range of the maxim de minimis, &c. ; but if not, that still this small excess does not vitiate the assess- ment. The maxim is so vague in itself as to form a very unsafe ground of proceeding or judging ; and it may be almost as diffi- cult to apply it as a rule in pecuniary concerns as to the interest which a witness has in the event t)f a cause ; and in such case it cannot apply. Any interest excludes him. The assessment was therefore unauthorized and void. If the line which the legisla- power to a certain percentage upon tax- abuse as any other which might have aihle property, or to a sum proportioned been established was a question for the to the number of inhabitants in the city, legislative department of the govem- Whether the restriction fixed upon would ment, and does not concern us on this as effectually guard the citizen against inquiry." CH. XIV.] THE POAVER OF TAXATION. 639 ture has established be once passed, we know of no boundary to the discretion of the assessors." ^ The same view has been taken by the Supreme Court of Michigan, by which the opinion is ex- pressed that the maxim de minimis lex non curat should be applied with great caution to proceedings of this character, and that the excess could not be held unimportant and overlooked where, as in that case, each dollar of legal tax was perceptibly increased thereby.^ Perhaps, however, a slight excess, not the result of intention, but of erroneous calculations, may be over- looked, in view of the great difficulty in making all such calcula- tions mathematically correct, and the consequent impolicy of requiring entire freedom from all errors.^ What method shall be devised for the collection of a tax, the legislature must determine, subject only to such rules, limitations, and restraints as the constitution of the State may have imposed.* Very summary methods are sanctioned by practice and precedent.^ Wherever a tax is invalid because of excess of authority, or be- cause the requisites in tax proceedings which the law has pro- vided for the protection of the taxpayer are not complied with, any sale of property based upon it will be void also. The owner 1 Huse V. Merriam, 2 Me. 375. See Joyner v. School Disttrict, 3 Cush. 567; Kemper v. McClelland, 19 Ohio, 308; School District v. Merrills, 12 Conn. 437 ; Elwell ». Shaw,l Me. 339 ; Wells k. Bur- bank, 17 N. H. 393; Kinsworthy v. Mitch- ell, 21 Ark. 145. 2 Case I). Dean, 16 Mich. 12. And see Commonwealth v. Savings Bank, 6 Allen, 428 ; Bucknall v. Story, 36 Cal. 67 ; Drew », Davis, 10 Vt. 506 ; Wells v. Burbank, 17 N. H. 393 ; Axtell v. Gerlach, 67 Cal. 488. * This was the view taken by the Su- preme Court of Wisconsin in Kelley v. Corson, 8 Wis. 182, where an excess of $8.61 in a tax of $6,654.57 was held not to be fatal ; it appearing not to be the re- sult of intention, and the court thinking that an accidental error no greater than this ought to be disregarded. See also O'Grady v. Barnhisel, 23 Cal. 287 ; State I!. Newark, 25 N.J. 399 j Havard v. Day, 62 Miss. 748. In Iowa the statute re- quires a sale to be upheld if any portion of the tax was legal. See Parker v. Sex- ton, 29 Iowa, 421. If a part of a tax only is illegal, the balance will be sustained if capable of being distinguished. O'Kane V. Treat, 25 111. 557 ; People v. Nichols, 49 111, 517. See State v. Plainfleld, 38 N. J. L. 93. * The following methods are resorted to : Suit at law ; arrest of the person taxed, distress of goods, and sale if neces- sary; detention of goods, in the case of imports, until payment is made ; sale or leasing of land taxed ; imposition of pen- alties for non-payment ; forfeiture of prop- erty; making payment a condition pre- cedent to the exercise of some legal right, such as the institution of a suit, or voting at elections, or to the carrying on of a busi- ness ; requiring stamps on papers, docu- ments, manufactured articles, &c. In Prentice v. Weston, 111 N. Y. 460, it is held not an unwarrantable interference with private property to forbid cutting of timber on laud on which a tax remains un- paid,when the chief value of the land lay in the timber. A village occupation tax can- not be enforced by fine and imprisonment. State V. Green, 42 N. W. Rep. 912 (Neb.). 5 See Henderson's Distilled Spirits, 14 Wall. 44 ; Weimer v. Bunbury, 30 Mich. 201 ; Lydeeker v. Palisade Land Co., 33 N. J. Eq. 415; Springer v. United States, 102 U. S. 586 ; In re Hackett, 53 Vt. 354 : Adler v. Whitbeok, 44 Ohio St. 539 ; ante, 434, note. 640 CONSTITUTIONAL LIMITATIONS. [CH. XIV. is not deprived of his property by " the law of the land," if it is taken to satisfy an illegal tax. And if property is sold for the satisfaction of several taxes, any one of which is unauthorized, or for any reason illegal, the sale is altogether void.^ And the general rule is applicable here, that where property is taken under statutory authority in derogation of common right, every requisite of the statute having a semblance of benefit to the owner must be complied with, or the proceeding will be ineffectual.^ 1 This has been repeatedly held. El- well V. Shaw, 1 Me. 339 ; Lacy v. Davis, 4 Mich. 140 ; Bangs v. Snow, 1 Mass. 180 ; Thurston v. Little, 3 Mass. 429 ; Dilling- ham V. Snow, 6 Mass. 547 ; Stetson v. Kempton, 13 Mass. 283 ; Libby v. Burn- ham, 15 Mass. 144 ; Hayden v. Foster, 13 Pick. 492 : Torrey o. Millbury, 21 Pick. 64; Alvord v. Collin, 20 Pick. 418; Drew V. Davis, 10 Vt. 506 ; Doe v. McQuilkin, 8 Blackf. 335; Kemper v. McClelland, 19 Ohio, 308 ; Peterson v. Kittredge, 65 Miss. 33. This is upon the ground that, the sale being based upon both the legal and the illegal tax, it is manifestly impos- sible afterwards to make the distinction, so that tlie act shall be partly a trespass and partly innocent. But when a party asks relief in equity before a sale against the collection of taxes, a part of which are legal, he will be required first to pay that part, or at least to so distinguish it from the rest that process of injunction can be so framed as to leave the legal taxes to be enforced ; and failing in this, his bill will be dismissed. Conway v. Waverley, 15 Mich. 257 ; Palmer i;. Nar poleon, 16 Mich. 176 ; Hersey v. Super- visors of Milwaukee, 16 Wis. 185 ; Bond V. Kenosha, 17 Wis. 284 ; Myrick v. La Crosse, 17 Wis. 442 ; Roaeberry v. Huff, 27 Ind. 12 ; Montgomery v. Wasem, 116 Ind. 343 ; Com'rs Allegany Co. u. Union Min. Co., 61 Md. 545; Brown a. School Dist., 12 Oreg. 345; Gage v. Caraher, 125 111. 447: Compare Solomon v. Oscoda, 43 N. W. Rep. 990 (Mich.). As to the character and extent of the irregularities which should defeat the proceedings for the collection of taxes, we could not undertake to speak here. We think the statement in tlie text, that a failure to comply with any such re- quirements of the law as are made for the protection of the owner's interest will prove fatal to a tax sale, will be found abundantly sustained by the authorities, while many of the cases go still further in making irregularities fatal. It appears to us that where the requirement of the law which has failed of observance was one which had regard simply to the due and orderly conduct of the proceedings, or to the protection of the public interest, as against the officer, so that to the tax- payer it is immaterial whether it was complied with or not, a failure to comply ought not to be recognized as a founda- tion for complaint by him- But those safeguards which the legislature has thrown around the estates of citizens to protect them against unequal, unjust, and extortionate taxation, the courts are not at liberty to do away with by declaring them non-essential. To hold the require- ment of the law in regard to them direct- ory only, and not mandatory, is in effect to exercise a dispensing power over the laws. Mr. Blackwell, in his treatise on Tax Titles, has collected the cases on this subject industriously, and perhaps we shall be pardoned for saying also with a perceptible leaning against that species of conveyance. As illustrating how far the courts will go, in some cases, to sus- tain irregular taxation, where officers have acted in good faith, reference is made to Kelley ». Corson, 11 Wis. 1 ; Her- sey V. Supervisors of Milwaukee, 16 Wis. 185. See also Mills v. Gleason, 11 Wis. 470, where the court endeavors to lay down a general rule as to the illegalities which should render a tax roll invalid. A party bound to pay a tax, or any por- tion thereof, cannot get title to the land by neglecting payment and allowing a sale to be made at which he becomes the purchaser. McMinn ». Whelan, 27 Cal. 800. See Butler v. Porter, 13 Mich. 292 ; Cooley on Taxation, 500 et seq. 2 See ante, pp. 88-93. Also Newell r. Wheeler, 48 N. Y. 486; Westfall u. CH. XI\.J THE POWER OF TAXATION. 641 Preston, 49 N. T. 349, 853 ; Stratton v. CoUins, 43 N. J. 663 ; Cobley on Taxa- tion, c. 15. It should be stated that in Iowa, under legislation favorable to tax titles, the courts go further in sustaining them than in perhaps any other State. Reference is made to the following cases : Eldridge v. Keuhl, 27 Iowa, 160 ; McCready „. Sex- ton, 29 Iowa, 856 ; Hurley v. Powell, 31 Iowa, 64 ; Bima v. Cowan, 31 Iowa, 125 ; Thomas v. Stickle, 32 Iowa, 71 j Hender- son V. Oliver, 32 Iowa, 612 ; Bulkley i'. Callanan, 32 Iowa, 461 ; Ware v. Little, 35 Iowa, 284 ; Jeffrey v. Brokaw, 85 Iowa, 505; Genther v. Fuller, 36 Iowa, 604; Leavitt v. Watson, 37 Iowa, 93 ; Phelps t;. Meade, 41 Iowa, 470. It may be use- ful to compare these cases with Kimball V. Bosendale, 42 Wis. 407, and Silsbee v. Stockle, 44 Mich. 661. 41 642 CONSTITDTIONAL LIMIXATI03SS. [CH. XV. CHAPTER XV. THE EMINENT DOMAIN. EvEEt sovereignty possesses buildings, lands, and other prop- erty, which it holds for the use of its officers and agents, to enable them to perform their public functions. It may also have prop- erty from the rents, issues, and profits, or perhaps the sale, of which it is expected the State will derive a revenue. Such prop- erty constitutes the ordinary domain of the State. In respect to its use, enjoyment, and alienation, the same principles apply which govern the management and control of like property of individuals ; and the State is in fact but an individual proprietor, whose title and rights are to be tested, regulated, and governed by the same rules that would have pertained to the ownership ol the same property by any of its citizens. There are also cases in which property is peculiarly devoted to the general use and enjoy- ment of the individual citizens who compose the organized society, but the regulation and control of which are vested in the State by virtue of its sovereignty. The State may be the proprietor of this property, and retain it for the common use, as a means of contributing to the general health, conifort, or happiness of the people ; but generally it is not strictly the owner, but rather the governing and supervisory trustee of the public rights in such property, vested with the power and charged with the duty of so regulating, protecting, and controlling them, as to secure to each citizen the privilege to make them available for his purposes, so far as may be consistent with an equal enjoyment by every other citizen of the same privilege.^ In some instances these rights are 1 In The Company of Free Fishers, therein. As regards public and exclusive &c. I'. Gann, 20 C. B. n. g. 1, it was held rights of fishery in this country, see Car- that the ownership of the Crown in the son v. Blazer, 2 Binn. 475 ; s. c. 4 Am. bed of navigable waters is for the bene- Deo. 463 ; Commonwealth v. Chapin, 5 fit of the subject, and cannot be used in Pick. 199; s. c. 16 Am. Dec. 386 ; Parker any such manner as to derogate from or v. Milldam Co., 20 Me. 353; s. c. 87 Am. interfere with the right of navigation, Deo. 56 Parsons v. Clark, 76 Me. 476; which belongs by law to all the subjects Commonwealth v. Look, 108 Mass. 452 ; of the realm. And that consequently the Cole v. Eastham, 183 Mass. 65 ; Packard grantees of a particular portion, who oc- ». Ryder, 144 Mass. 440; Sloan v. Biemil- cupied it for a fishery, could not be law- ler, 34 Ohio St. 472; Lincoln v. Davis, 53 fully authorized to charge and collect Mich. 375 ; Angell on Watercourses, § 55 a, anchorage dues from vessels anchoring and cases cited ; Cooley on Torts, 388-390. CH. X?.] THE EMINENT DOMAIN. 643 of such a nature, or the circumstances are such, that the most feasible mode of enabling every citizen to participate therein may seem to be for the State to transfer its control, wholly or pai'tially, to individuals, either receiving by way of augmentation of the public revenues a compensation therefor, or securing in return a release to the citizens generally from some tax or charge which would have rested upon them in respect to such rights, had the State retained the usual control in its own hands, and borne the incidental burdens. The rights of which we here speak are considered as pertaining to the State by virtue of an authority existing in every sovereignty, and which is called the eminent domain. Some of these are com- plete without any action on the part of the State ; as is the case with the rights of navigation in its seas, lakes, and public rivers, the rights of fishery in public waters, and the right of the State to the precious metals which may be mined within its limits.^ Others only become complete and are rendered effectual through the State displacing, either partially or wholly, the rights of private owner- ship and control ; and this it accomplishes either by contract with the owner, by accepting his gift, or by appropriating his property against his will through an exercise of its superior authority. Of these, the common highway furnishes an example ; the public rights therein being acquired either by the grant or dedication of the owner of the land over which they run, or by a species of forcible dispossession when the public necessity demands the way, and the private owner will neither give nor sell it. All these rights rest upon a principle which in every sovereignty is essential to its ex- istence and perpetuity, and which, so far as when called into ac- tion it excludes pre-existing individual rights, is sometimes spoken of as being based upon an implied reservation by the government when its citizens acquire property from it or under its protection. And as there is not often occasion to speak of the eminent domain except in reference to those cases in which the government is called upon to appropriate property against the will of the owners, the right itself is generally defined as if it were restricted to §ucU cases, and is said to be that superior right of property pertaining to the sovereignty by which the private property acquired by its citizens under its protection may be taken or Its use controlled for the public benefit without regard to the wishes of its owners. More accurately, it is the rightful authority, which exists in every sovereignty, to control and regulate those rights of a public nature 1 1 Bl. Com. 294 ; 3 Kent, 378, note, carries with it to the grantee the title to In California, it has been decided that a all mines. Boggs v. Merced, &o. Co., 14 grant of public lands by the government Cal. 279 , Moore i>. Smaw, 17 Cal. 199. 644 CONSTITUTIONAL LIMITATIONS. [CH. XV. which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience, or welfare may demand.^ When the existence of a particular power in the government is recognized on the ground of necessity, no delegation of the legisla- tive power by the people can be held to vest authority in the de- partment which holds it in trust, to bargain away such power, or to so tie up the hands of the government as to preclude its re- peated exercise, as often and under such circumstances as the needs of the government may require. For if this were otherwise, the authority to make laws for the government and welfare of the State might be so exercised, m strict conformity with its constitu- tion, as at length to preclude the State performing its ordinary and essential functions, and the agent chosen to govern the State might put an end to the State itself. It must follow that any legislative bargain in restraint of the complete, continuous, and repeated ex- ercise of the right of eminent domain is unwarranted and void ; and that provision of the Constitution of the United States which forbids the States violating the obligation of contracts could not be so construed as to render valid and effectual such a bargain, 1 Vattel, c. 20, § 34; Bynkershoek, lib. 2, c. 15; Ang. on Wateruourses, § 457 ; 2 Kent, 338-340 ; Redf. on Railw. c. 11, § 1; Waples, Pro. in Rem, § 242. " The right which belongs to the society or to the sovereign of disposing, in ease of necessity, and for tlie public safety, of all the wealth contained in the State, is called the eminent domain." McKinhg, J., in Pollard's Lessee v. Hagan, 3 How. 212, 223. "Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government, or in the ag- gregate body of the people in their sov- ereign capacity; and they have a right to resume the possession of the property, in t|^e manner directed by the constitu- tion and laws of the State, whenever the public interest requires it. This right of resumption may be exercised, not only where the safety, but also where the in- terest, or even the expediency of the State is concerned ; as where the land of the individual is wanted for a road, canal, or other public improvement." Walworth, Chancellor, in Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 45, 73 ; 8. c. 22 Am. Dec. 679. The right is in- herent in all governments, and requires no constitutional provision to give it force. Brown v. Beatty, 34 Miss. 227 ; Taylor v. Porter, 4 Hill, 140 ; Lake Shore, &c. R. R. Co. V. Chicago, &c., R. B. Co., 97 III. 506 ; s. c. 2 Am. & Eng. R. R. Cas., 440 ; United States «. Jones, 109 U. S. 513. " Title to property is always held upon the implied condition that it must be surrendered to the government, either in whole or in part, when the public necessities, evidenced according to the established forms of law, demand." Ho- geboom, J., in People v. Mayor, &c. of New York, 32 Barb. 102, 112. And see Heyward v. Mayor, &c. of New York, 7 N. Y. 314; Water Works Co. i>. Burk- hart, 41 Ind. 364 ; Weir e. St. Paul, &o. E. R. Co., 18 Minn. 155. That one exer- cise of the power of appropriation will not preclude others for the same purpose, see Central Branch U. P. R. R. Co. v. Atchi- son, &c. R. R. Co., 26 Kan. 669 ; 5 A. & E. R. R. Cas. 397, and cases in note ; Peck V. Louisville, &c. Ry. Co. 101 Ind. 366 ; Dietrichs v. Lincoln &o. R. R. Co., 13 Neb. 361. But when a bridge company has once located its line of approach and begins work, it cannot change it without legislative authority. Matter of Pough- keepsie Bridge Co., 108 N. Y. 483. CH. XV.] THE EMINENT DOMAIN. 645 which originally was in excess of proper authority. Upon tliis subject we shall content ourselves with referring in this place to what has been said in another connection.^ As under the peculiar American system the protection and regulation of private rights, privileges, and immunities in general belong to the State governments, and those governments are ex- pected to make provision for the conveniences and necessities which are usually provided for their citizens through the exer- cise of the right of eminent domain, the right itself, it would seem, must pertain to those governments also, rather than to the government of the nation ; and such has been the conclusion of the authorities. In the new Territories, however, where the govern- ment of the United States exercises sovereign authority, it pos- sesses, as incident thereto, the right of eminent domain, which it may exercise directly or through the territorial governments ; but this right passes from the nation to the newly formed State whenever the latter is admitted into the Union.^ So far, however, as the general government may deem it important to appropriate lands or other property for its own purposes, and to enable it to perform its functions, — as must sometimes be necessary in the case of forts, light-houses, military posts or roads, and other con- veniences and necessities of government, — the general govern- ment may still exercise the authority, as well within the States as within the territory under its exclusive jurisdiction, and its right to do so may be supported by the same reasons whicli support' the right in any case ; that is to say, the absolute necessity that the means in the government for performing its functions and perpetu- ating its existence should not be liable to be controlled or defeated by the want of consent of private parties, or of any other au- thority.* 1 See ante, p. 338. , N. H. 591, the contrary is now deter- 2 Pollard's Lessee v. Hagan, 3 How. mined. SeeTrombleyw. Auditor-General, 212; Goodtitle v. Kibbee, 9 How. 471; 23 Mich. 471; Kohl v. United States, 91 Doe V. Beebe, 13 How. 25 ; United States U. S. 367. Such an authority in the V. The Railroad Bridge Co., 6 McLean, States is needless, for the power of the 517; Weber v. Harbor Commissioners, general government is ample for all 18 Wall. 67; Swan u. Williams, 2 Mich, needs. But a statute is valid which 427; Warren i). St. Paul, &c. R. R. Co., grants to the United States the right toin- 18 Minn. 384. Although it has been held stitute condemnation proceedings. Matter in some cases that the States have au- of Petition of United States, 96 N. Y. 227. thority, under the eminent domain, to ' Kohl v. United States, 91 U. S. 367 ; appropriate the property of individuals in Trombley v. Auditor-General, 23 Mich, order to donate it to the general govern- 471 ; Darlington v. United States, 82 Pa. ment for national purposes : Reddall ». St. 382. The United States may delegate Bryan, 14 Md. 444 ; Gilmer v. Lime Point, to a State tribunal the power to ascertain 18 Cal'. 229 ; Burt v. Merchants' Ins. Co., the compensation to be paid. United 106 Mass. 366, and Cumniings v. Asli, 60 States v. Jones, 109 U. S. 613. 646 CONSTITUTIONAL LIMITATIONS. [CH. XV. What Property is subject to the Might. Every species of property which the public needs may require and which government cannot lawfully appropriate under any other right, is subject to be seized and appropriated under the right of eminent domain.^ Lands for the public ways ; timber, stone, and gravel with which to make or improve the public ways ; ^ buildings standing in the way of contemplated improve- ments, or which for any other reason it becomes necessary to take, remove, or destroy for the public good ; ^ streams of water ; * cor- 1 People V. Mayor, &c. of New York, 82 Barb. 102 ; Bailey v. Miltenberger, 31 Pa. St. 37. Land belonging to, but not in actual use by a State university, may be condemned. In re St. Paul & N. P. Ry. Co., 34 Minn. 227. 2 Wheelock u. Young, 4 Wend. 647 ; Lyon V. Jerome, 15 Wend. 569 ; Jerome V. Ross, 7 Johns. CIi. 315 ; s. c. 11 Am. Dec. 484 j Bliss. ». Hosmer, 15 Ohio, 44; Watkins v. Walker Co., 18 Tex. 585. In Eldridge v. Smith, 34 Vt. 484, it was held competent for a railroad company to ap- propriate lands for piling the wood and lumber used on the road, and brought o it to be transported thereon. ' "Wells V. Somerset, &c. R. R. Co., 47 Me. 345. So of a pier. Matter of Union Perry Co., 98 N. Y. 139. But the de- struction of a private house during a fire to prevent the spreading of a conflagra- tion has been held not to be an appropri- ation under the right of eminent domain, but an exercise of the police power. "The destruction of this property was authorized by the law of overruling necessity ; it was the exercise of a natural right belonging to every individual, not conferred by law, but tacitly accepted from all human codes." Per Sherman, Senator, in Russell v. Mayor, &c. of New York, 2 Denio, 461, 473. See also So- rocco V. Geary, 3 Cal. 69; Con well v. Emrie, 2 Ind. 35; American Print Works V. Lawrence, 21 N. J. 248 ; Same v. Same, 23 N. J. 9, 590 ; McDonald v. Redwing, 13 , Minn. 38 : Field v. Des Moines, 39 Iowa, 575. The municipal corporation whose oflScers order the destruction is not liable for the damages unless expressly made so by statute. White u. Charleston, 2 Hill (S. C), 571; Dunbar v. San Fran- cisco, 1 Cal. 355 ; Stone v. Mayor, &c., of New York, 25 Wend. 157 ; Taylor «. Ply mouth, 8 Met. 462 ; Ruggles v. Nantucket, 11 Cush. 433 ; Keller v. Corpus Christi, 50 Tex. 614 ; s. o. 32 Am. Rep. 613. * Gardner v. Newburg, 2 Johns. Ch. 162 ; s. 0. 7 Am. Dec. 526. In this case a stream was appropriated in order to supply a town with water. The appropri- ation might, of course, be made for any other object of public utility ; and a stream may even be diverted from its course to remove it out of the way of a public im- provement when not appropriated. See Johnson v. Atlantic, &c. R. R. Co., 35 N. H. 569 ; Baltimore, &o. R. R. Co. !.'. Magru- der, 34 Md. 79; s. c. 6 Am. Rep. 310; Reusch v. Chicago, &c. R. R. Co., 57 Iowa, 687. But in general, in constructing a pub- lic work, it is the duty of those concerned to avoid diverting streams, and to con- struct the necessary culverts, bridges, &c., for that purpose. March v. Ports- mouth, &c. R. R. Co., 19 N. H. 372; Boughton V. Carter, 18 Johns. 405 ; Rowe V. Addison, 34 N. H. 306; Proprietors, &c. V. Nashua & Lowell R. R, Co., 10 Cush. 388 ; Haynes v. Burlington, 38 Vt. 350. And see Pettigrew v. Evansville, 26 Wis. 223 ; Arimond v. Green Bay Co., 31 Wis. 316; Stein ... Burden, 24 Ala. 130; Diamond Match Co. v. New Haven, 55 Conn. 510. As to the obligation of a railroad company to compensate parties whose lands are flooded by exca- vations or embankments of the company, see Brown v. Cayuga, &c. R. R. Co., 12 N. Y. 486; Norris v. Vt. Cent. R. R. Co., 28 Vt. 99. Compare Eaton v. Boston, C. & M. R. R. Co., 51 N. H. 504, where it was decided that a corporation which flooded a man's land by removing a natural pro- CH. XV,] THE EMINENT DOMAIN. 647 porate f rancliises ; ^ and generally, it may be said, legal and equi- table rights of every description are liable to be thus appropri- ated.^ From this statement, however, must be excepted money, tection in the construction of its road was liable for tlie injury, even though its road was constructed with due care, with Bel- Jlenger v. N. Y. Central B. R. Co., 23 N. Y. 42; Abbott v. Kansas City, &c. Co., 83 Mo. 271 ; Moss u. St. Louis, &c. Ry. Co., 86 Mo. 86 ; Bell u. Norfolk, &c. R. R. Co., 101 N. C. 21 ; and other cases cited, post, pp. 667, 703. ^ Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 85 ; Crosby v. Hanover, 36 N. H. 404; Tuckahoe Canal Co. v. Railroad Co., 11 Leigh, 42; s. c. 86 Am. Dec. 374; Boston Water Power Co. v. Boston & Worcester R. R. Co., 23 Pick. 360 ; Central Bridge Corporation v. Low- ell, 4 Gray, 474 ; West River Bridge i^. Dix, 6 How. 507 ; Richmond R. R. Co. w. Louisa R. R, Co. 13 How. 71, per Gner, J. ; Chesapeake & Ohio Canal Co. v. Baltimore & Ohio R. R. Co., 4 Gill & J. 5; State o. Noyes, 47 Me. 189 ; Red River Bridge Co. v. Clarksville, 1 Sneed, 176 , Armington v. Barnet, 15 Vt. 745 ; White River Tumpifee Co. v. Vermont Central R. R. Co., 21 Vt. 590 ; Newcastle, &c. R. R. Co. V. Peru & Indiana R. R. Co., 3 Ind. 464; Springfield v. Connecticut River R. R. Co., 4 Cush. 63 ; Forward v. Hampshire, &c. Canal Co., 22 Pick. 462 ; Commonwealth v. Pittsburg, &c. R. R. Co., 58 Pa. St. 26 ; Re Towanda Bridge Co., 91 Pa. St. 216; In re Twenty-Second St., 102 Pa. St. 108. "The only true rule of policy as well as of law is, that a grant for one public purpose must yield to another more urgent and important, and this can be effected without any in- fringement on the constitutional rights of the subject. If in such cases suitable and adequate provision is made by the legislature for the compensation of those whose property or franchise is injured or taken away, there is no violation of pub- lic faith or private right. The obligation of the contract created by the original charter is thereby recognized." Per Bigelow, J., in Central Bridge Corpora- tion „. Lowell, 4 Gray, 474, 482. This subject receives a very full and satisfac- tory examination by Judges Pearson and Sharswood, in Commonwealth v. Pennsyl- vania Canal Co., 66 Pa. St. 41; a. c. 5 Am. Rep. 329. In Central City Horse Ra.ilway Co. v. Fort Clark Horse Railway Co., 87 111. 528, this subject is somewhat considered. The question Involved is thus stated by the court : " Can a com- peting horse railway company in an in- corporated city acquire by compulsion a title to or the joint use of [a part of] the track and superstructure of another like corporation, and for the express purpose of making the tracks so compulsorily taken a portion of its own line 1 " This question is answered in the negative, though at the same time it is intimated that "proceedings might be instituted, perhaps, to condemn the entire road and franchise, and thus pass it over as an en. tirety to the competing road." But as to this, see Lake Shore, &o. R. R. Co. v. Chicago, &o. R. R. Co., 07 111. 506 ; lie Rochester Water Commissioners, 66 N. Y. 413 ; Little Miami, &c. R. R. Co. v. Day- ton, 23 Ohio St. 510. Land appropriated by one railroad company under the emi- nent domain, but not required for the exercise of its franchises or the discharge of its duties, is liable to be taken for the corporate use of another railroad com- pany. North Carolina, &c. R. R. Co. v. Carolina Central, &c. R. R. Co., 83 N. C. 489. See Chicago, &c. R. R. Co. u. Lake, 71 HI. 333. A contract ceding 'to a tele- graph company the exclusive right of operating and maintaining its lines over the right of way of a railroad company cannot preclude the State from authoriz- ing the establishment of another telegraph line over the same right of way. New Orleans, &c. R. R. Co. v. Southern, &c. Telegraph Co., 53 Ala. 211. The bridge of a corporation may be taken under this power and made a free bridge. Re To- wanda Bridge Co., 91 Pa. St. 216. So of the right of a railroad company given under peculiar circumstances to take toll on a highway. Phila. &e. Ry. Co.'s Ap- peal, 120 Pa. St. 90. '■^ Tlie appurtenant right of an abutter to have a street ojien may be taken : Rennselaer v. Leopold, 106 Ind. 29 ; the right to pass over a private way : Buffalo, N. y. & P. R. R. Co. V. Overton, 85 Hun, 157 ; the right to have a farm-crossing at 648 CONSTITUTIONAL LIMITATIONS, [CH. XV. or that which in ordinary use passes as such, and which the govern- ment may reach by taxation, and also rights in action, which can only be available when made to produce money ; neither of which can it be needful to take under this power.^ Legislative Authority Requisite. The right to appropriate private property to public uses liesi* dormant in the State, until legislative action is had, pointing out the occasions, the modes, conditions, and agencies for its appro- priation .^ Private property can only be taken pursuant to law ; but a legislative act declaring the necessity, being the customary mode in which that fact is determined, must be held to be for this purpose " the law of the land," and no further finding or adjudi- cation can be essential, unless the constitution of the State has expressly required it.^ When, however, action is had for this a particular place. Matter of N. Y. L. &o. E. R. Co., 44 Hun, 194. ' Property of indiTiduals cannot be appropriated by the State linder this power for the mere purpose of adding to the revenues of the State. Thus it has been held in Ohio, that in appropriating the water of streams for the purposes of a canal, more could not be taken than was needed for that object, with a view to raising a revenue by selling or leas- ing it. " The State, notwithstanding the sovereignty of her character, can take only sufficient water from private streams for the purposes of the canal- So far the law authorizes the commissioners to in- vade private right as to take what may be necessary for canal navigation, and to this extent authority is conferred by the constitution, provided a compensation be paid to the owner. The principle is founded on the superior claims of a whole community over an individual citizen ; but then in those cases only where pri- vate property is wanted for public use, or demanded by the public welfare. We know of no instances in which it has or can be taken, even by State authority, for the mere purpose of raising a revenue by sale or otherwise ; and the exercise of such a power would be utterly destruc- tive of individual right, and break down all the distinctions between meum and tuum, and annihilate them forever at the pleasure of the State." Wood, J., in Buckingham v. Smith, 10 Ohio, 288, 297, To the same effect is Cooper v. Williams, 5 Ohio, 392 ; s. c. 22 Am, Dec. 745. Taking money under the right of emi- nent domain, when it must be compen- sated in money afterwards, could be noth- ing more or less than a forced loan, only to be justified as a last resort in a time of extreme peril, where neither the credit of the government nor the power of taxation could be made available. It is impossi- ble to lay down rules for such a case, ex- cept such as the law of overruling neces- sity, which for the time, being sets aside all the rules and protections of private right, shall then prescribe. See post, p. 652, note. 2 Barrow v. Page, 5 Hayw. 97 ; Rail- road Co. V. Lake, 71 111. 333; AUen v, Jones, 47 Ind. 438. It cannot be pre- sumed that any corporation has authority to exercise the right of eminent domain until the grant be shown. Phillips v. Dunkirk, &c. B. R. Co., 78 Pa. St. 177 ; Allen ti. Jones, 47 Ind. 438. A foreign corporation, it is held in Nebraska, which may not acquire real estate, cannot con- demn land indirectly through a domestic corporation. State «. Scott, 22 Neb. 628 ; Koenig v. Chicago, &c. R. R. Co., 43 N. W. Rep. 423. » "Whatever may b3 the theoretical foundation for the right of eminent do- main, it is certain that it attaches as an incident to every sovereignty, and consti- tutes a condition upon which all property is holden. When the public necessity CH. XV.] THE EMINENT DOMAIN. 649 purpose, there must be kept in view that general as well as reason- able and just rule, that, whenever in pursuance of law the prop- erty of an individual is to be divested by proceedings against his will, a strict compliance must be had with all the provisions of law which are made for his protection and benefit, or the pro- ceeding will be ineffectual.! Those provisions must be regarded as in the nature of conditions precedent, which are not only to be observed and complied with before the right of the property owner is disturbed, but the party claiming authority under the adverse proceeding must show affirmatively such compliance. For example, if by a statute prescribing the mode of exercising the right of eminent domain, the damages to be assessed in favor of the property owner for the taking of his land are to be so assessed by disinterested freeholders of the municipality, the proceedings will be ineffectual unless they show on thpir face that the appraisers were such freeholders and inhabitants.^ So if a statute only authorizes proceedings in invitum after an effort shall have been made to agree with the owner on the compensa- tion to be paid, the fact of such effort and its failure must appear.* requires it, private rights to property must yield to this paramount right of the sovereign power. We have repeatedly held that the character of the work for -which the property is taken, and not the means or agencies employed for its con- struction, determines the question of power in the exercise of this right. It requires ho judicial condemnation to sub- ject private property to public uses. Like the power to tax, it resides with tlie legis- lative department to whom the delegation is made. It may be exercised directly or indirectly by that body ; and it can only be restrained by the judiciary wlien its limits have been exceeded or its authority has been abused or perverted." Kramer V. Cleveland & Pittsburg R. R. Co., 5 Ohio St. 140, 146. The mode of exercise is left to the legislative discretion, when not restrained by the constitution. Se- combe v. Railroad Co., 23 Wall. 108. An owner is not entitled to notice of meeting of commissioners to determine the neces- sity of an improvement. Zimmerman v. Canfield,42 0hioSt. 463. ' Gillinwater v. Mississippi, &c. R. R. Co., 13 111. 1 ; Stanford v. Worn, 27 Cal. 171 ; Dalton w. Water Commissioners, 49 Cal. 223 ; Stockton ». Whitmore, 50 Cal. 654 ; Supervisors of Doddridge v. Stout, 9 W. Va. 703; Mitchell v. Illinois, &c. Coal Co., 68 111. 286; Chicago, &c. R. R. Co. V. Smith, 78 111. 96 ; Springfield, &c. R. B. Co. V. Hall, 67 111. 99; Powers's Appeal, 29 Mich. 504 ; Kroop v. Forman, 31 Mich. 144 ; Arnold v. Decatur, 29 Mich. 77 ; Lund v. New Bedford, 121 Mass. 286 ; Wamesit Power Co. v. Allen, 120 Mass. 352; Bohlman v. Green Bay, &c. B. R. Co., 40 Wis. 157 ; Moore v. Railway Co., .34 Wis. 173; United States v. Reed, 56 Mo. 565 ; Decatur County v. Humphreys,- 47 Ga. 665; Commissioners f. Beckwith, 10 Kan. 603. 2 Nichols r. Bridgeport, 23 Conn. 189 ; Judson V. Bridgeport, 25 Conn. 426 ; Peo- ple ». Brighton, 20 Mich. 57; Moore v. Railway Co., 34 Wis. 173. » Reitenbaugh v. Chester Valley R. R. Co., 21 Pa. St. 100 ; Ellis v. Pacific R. R. Co., 51 Mo. 200; United States v. Reed, 56 Mo. 565 ; Burt v. Brigham, 117 Mass. .307; Oregon Ry. & Nav. Co. v. Oregon &c. Co., 10 Oreg. 444 ; Rowland v. School Dist., 15 Atl. Rep. 74 (R. I); Reed V. Ohio &o. Ry. Co., 126 111. 48; Grand Rapids & L R. R. Co. v. Wei- den, 70 Mich. 390; West Va. Trans- portation Co. i>. Volcanic Oil & Coal Co., 6 W. Va. 382, it was held that if the owner appears in proceedings taken for the assessment of damages, and contests the amount without objecting 650 CONSTITUTIONAL LIMITATIONS, [CH. XT. So if the statute vests the title to lands appropriated in the State or in a corporation on payment therefor being made, it is evident that, under the rule stated, the payment is a condition precedent to the passing of the title.^ And where a general railroad law authorized routes to be surveyed by associated persons desirous of constructing roads, and provided that if the legislature, on being petitioned for the purpose, should decide by law that a proposed road would be of sufficient utility to justify its construc- tion, then the company, when organized, might proceed to take land for the way, it was held that, until the route was approved by the legislature, no authority could be claimed under the law to appropriate land for the purpose.^ These cases must siiffice as illustrations of a general rule, which indeed would seem to be too plain and obvious to require either illustration or discussion .^ Green Bay, &c. R. R. Co., 40 Wis. 157; Brady v. Bronson, 45 Cal. 640; Delphi v. Evans, 36 Ind. 90 ; Eidemiller v. Wyan- dotte, 2 Dill. 376. In the case in Howard the want of any such attempt, the court must presume it to have been made. ' Stacy V. Vermont Central R. R. Co., 27 Vt. 39. By tlie section of the statute under which the land was appropriated, it was provided that when land or other real estate was taken by the corporation, for the use of their road, and the parties were unable to agree upon the price of the land, the same should be ascertained and determined by the commissioners, together with the costs and charges ac- cruing thereon, and upon the paymeM of the same, or bi/ depositing the amount in a bank, as should be ordered by the commissioners, the corporation should be deemed to be seized and possessed of the lands. Held, that, until the payment was made, the company had no right to enter upon the land to con- struct the road, or to exercise any act of it is said ; " It can hardly be questioned that without acceptance by the acts and in the mode prescribed [i. «., by payment of the damages assessed], the company were not bound ; that if they had been dissatisfied with the estimate placed on the land, or could have procured a more eligible site for the location of their road, they would have been at liberty, before such acceptance, wholly to renounce the inquisition. The proprietors of the land could hare no authority to coerce the company into its adoption." Daniel, J., 10 How. 395, 399. ^ Gillinwater v. Mississippi, &c. R. R. Co., 13 111.1. "The statute says that. ownership over it ; and that a court of after a certain other act shall have been equity would enjoin them from exercising any such right, or they might be prose- cuted in trespass at law. This case fol- lows Baltimore & Susquehanna R. R. Co. V. Nesbit, 10 How. 395, and Blood>- good v. Mohawk & Hudson R. R. Co., 18 Wend. 9, where the statutory provi- sions were similar. In Kentucky pay- ment in money must be made before entry. Covington Ry. Co. v. Piel, 87 Ky. 267. See further State v. Seymour, 35 N. J. 47 ; Cameron u. Supervisors, 47 Miss. 264 ; St. Joseph, &c. R. R'. Co. v. Calleuder, 13 Kan. 496; Paris v. Mason, 37 Tex. 447; People v. McRoberts, 62 111. 38 ; St. Louis, &e. R. R. Co. v. Teters, 68 111. 144 ; Sherman v. Milwaukee, &o. R. R. Co, 40 Wis. 645; Bohlman v. passed, the company may then proceed to take private property for the use of its road ; that is equivalent to saying that that right shall not be exercised without such subsequent act. The right to take private property for public use is one of the highest prerogatives of the sovereign power; and here the legislature has, in language not to be mistaken, expressed its Intention to reserve that power until it could judge for itself whether the pro- posed road would be of sufficient public Utility to justify the use of this high pre- rogative. It did not intend to cast tliis power away, to be gathered up and used by any who might choose to exercise it." Ibid. p. 4. ' See further the cases of Atlantic & CH. XV.] THE EMINENT DOMAIN. 651 So the powers granted by such statutes are not to be enlarged by intendment, especially where they are being exercised by a corporation by way of appropriation of land for its corporate purposes. " There is no rule more familiar or better settled than this : that grants of corporate power, being in derogation of common right, are to be strictly construed ; and this is especially the case where the power claimed is a delegation of the right of eminent domain, one of the highest powers of sovereignty per- taining to the State itself, and interfering most seriously and often vexatiously with the ordinary rights of property." ^ It has ac- cordingly been held that where a railroad company was authorized by law to " enter upon any land to survey, lay down, and construct its road," " to locate and construct branch roads," &c., to appro- priate land " for necessary side tracks," and " a right of way over adjacent lands sufficient to enable such company to construct and repair its road," and the company had located, and was engaged in the construction of its main road along the north side of a town, it was not authorized under this grant of power to appro- priate a temporary right of way for a term of years along the south side of the town, to be used as a substitute for the main track whilst the latter was in process of construction.^ And substantially the same strict rule is applied when the State itself seeks to appropriate private property ; for it is not unreasonable that the property owner should have the right to insist that the State, which selects the occasion, and prescribes the conditions for the appropriation of his property, should confine its action strictly within the limits which it has marked out as sufficient. So high a prerogative as that of divesting one's estate against his will should only be exercised where the plain letter of the law permits it, and under a careful observance of the formalities prescribed* for the owner's protection. The Purpose. The definition given of the right of eminent domain implies that the purpose for which it may be exercised must not be a mere private purpose ; and it is conceded on all hands that the legislature has no power, in any case, to take the property of one Ohio E. E. Co. V. Sullivant, 5 Ohio St. ^ Currier v. Marietta & Cincinnati 276 ; Parsons v. Howe, 41 Me. 218 ; At- E. E. Co., 11 Ohio St. 228. And see Gil- kinson v. Marietta & Cincinnati E. E. mer v. Lime Point, 19 Cal. 47 ; Bensley v. Co. 15 Ohio St. 21. Mountain Lake, &o. Co. 13 Cal. 306 : 1 Currier v. Marietta & CiBcinnati Bruning v. N. O. Canal & Banking Co., E. E. Co., 11 Ohio St. 228, 231 ; Miami 12 La. Ann. 541 ; West Virginia Trans- Coal Co. V. Wigton, 19 Ohio St. 560. See portation Co. v. Volcanic Oil & Coal ante, pp. 486, 487. Co., 5 W. Va. 382. 652 CONSTITUTIONAL LIMITATIONS, [CH. XV. individual and pass it over to another without reference to some use to whicli it is to be applied for the public benefit.^ " The right of eminent domain," it has been said, " does not imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will be in no way promoted by such transfer." ^ It seems not to be allowable, therefore, to authorize private roads to be laid out across the lands of unwilling parties by an exercise of this right. The easement in such a case would be the property of him for whom it was established; and although the owner would not be deprived of the fee in the land, the beneficial use and exclusive enjoyment of his propei-ty would in greater or less degree be interfered with. Nor would it be material to inquire what quantum of interest would pass from him : it would be sufficient that some interest, the appropriation of which- detracted from his right and authority, and interfered with his exclusive possession as owner, had been taken against his will; and if taken for a purely private purpose, it would be unlawful.^ Nor 1 In a work of this character, we have no occasion to consider the right of the government to seize and appropriate to its own use t)ie property of individuals in time of war, through its military author- ities. That is a right which depends on tlie existence of hostilities, and the sus- pension, partially or wholly, of the civil laws. For recent cases in which it has been considered, see Mitchell v. Har- mony, 13 How. 115; Wilson v. Crockett, 43 Mo. 216 ; Wellman v. Wickerman, 41 Mo. 484 ; Yost v. Stout, 4 Cold. 205 ; Sut- ton V. Tiller, 6 Cold. 593 , Taylor w. Nash- ville, &c. R. B. Co , 6 Cold. 646 ; Coolidge V, Guthrie, 8 Ara. Law Reg. N. s. 22; Echols V. Staunton, 3 W. Va. 574 ; Wilson V. Franklin, 63 N. C. 259. 2 Beekman v. Saratoga & Schenecta- dy R. B. Co., 3 Paige, 73 ; s. c. 22 Am. Deo. 679 ; Teneyck v. Canal Co., 18 N. J. 200; s. c. 37 Am. Dee. 233; Hepburn's Case, 3 Bland, 95; Sadler v. Langhara, 34 Ala. 311; Pittsburg v. Scott, 1 Pa. St. 309; Matter of Albany Street, 11 Wend. 149; 8. c. 25 Am. Dec. 618; Matter of John & Cherry Streets, 19 Wend. 659 ; Cooper V. Williams, 5 Ohio, .391 ; s. c. 24 Am. Dec. 299 ; Buckingham ». Smith, 10 Ohio, 288 ; Reeves v. Treasurer of Wood Co., 8 Ohio St. 383. See this subject considered on principle and authority by Senator TVocy in Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 955 et seq. See also Embury v. Conner, 3 N. Y. 511 ; Kramer v. Cleveland & Pittsburgh R. R. Co., 5 Ohio St. 140 ; Pratt v. Brown, 8 Wis. 60S ; Concord R. R. v. Greelev, 17 N. H. 47 ; N. Y. & Harlaem E. R. Co. V. Kip, 46 N. Y. 546 ; s. c. 7 Am. Rep. 385. The power can only be ex- ercised to supply some existing public need or to gain some present public ad- vantage ; not with a view to contingent results dependent on a projected specula- tion. Edgewood R. R. Go's Appeal, 79 Pa. St. 257. Kor for a mere public con- venience ; such as a company for loading and unloading freight on and from steam- boats and other craft touching at a river port. Memphis Freight Co. v. Memphis, 4 Cold. 419. But land not needed at once may be condemned for extra tracks of a railroad. Matter of Staten Island Tran- sit Co., 103 N. Y. 251. s 3 Taylor v. Porter, 4 Hill, 140, per BronA son, J.; Clark v. White, 2 Swan, 640; White V. White, 5 Barb. 474 ; Sadler v. Langham, 34 Ala. 311 ; Pittsburg v. Scott, 1 Pa. St. 309; Nesbitt v. Trumbo, 39 111. 110 ; Osborn ». Hart, 24 Wis. 89 ; 8. 0. 1 Am. Rep. 161 ; Tyler v. Beaeher, 44 Vt. 648 ; 8. c. 8 Ara. Rep. 398 ; Bankhead «. Brown, 26 Iowa, 540; Witham w. Osbum, 4 0reg. 818; s. c. 18 Am. Rep. 287; Stew- art V. Hartman, 46 Ind. 331 ; Wild v. Deig, CH. XV.] THE EMINENT DOMAIN. 653 could it be of importance that the public would receive incidental benefits, such as usually spring from the improvement of lands or 48 Ind. 455; 8. c. 13 Am. Bep. 399; Blackman v. Halves, 72 Ind. 515 ; White V. Clark, 2 Swan, 230 ; Hickman's Case, 4 Harr. 580; Robinson v. Swope, 12 Bush, 21 ; Varner v. Martin, 21 W. Va. 534. A neighborhood road is only a private road, and taking land for it would not be for a public use. Dickey v. Tennison, 27 Mo. 373. But see, as to this, Ferris a. Bramble, 5 Ohio St. 109 ; Brock v. Barnet, 57 Vt. 172; Bell w. Prouty, 43 Vt. 279; Whittingham v. Bowen, 22 Vt. 317 ; Proc- tor V. Andover, 42 N. H. 348. To avoid this difficulty, it is provided by the con- stitutions of some of the States that pri- vate roads may be laid out tmder proceed- ings corresponding to those for the es- tabllshment of highvf ays. There are pro- visions to that effect in the Constitutions of New York, Georgia, and Michigan. It is allowable under the Alabama Consti- tution also. Steele v. County Com'rs, 83 Ala. 304. But in Harvey v. Thomas, 10 "Watts, 63, it was held that the right might be exercised in order to the estab- lishment of private ways from coal fields to connect them with the public improve- ments, there being nothing in the consti- tution forbidding it. See also The Pocop- Bon Road, 16 Pa. St. 15 ; Sherman v. Bu- ick, 32 Cal. 241 ; Brewer v. Bowman, 9 Ga. 37 ; Robinson v. Swope, 12 Bush, 21. But in Illinois it is held expressly that such a road cannot be condemned : ShoU V. German Coal Co., 118 111. 427, and the doctrine of the cases just cited is directly opposed to Youpg v. McKenzie, 3 Ga. 31 ; Taylor v. Porter, 4 Hill, 140 ; Buffalo ^ N. Y. B. R. Co. V. Brainard, 9 N. Y. 100; Bradley v. N. Y. & N. H. R. R. Co., 21 Conn. 294 ; Reeves v. Treasurer of Wood Co., 8 Ohio St. 333, and many other cases ; though possibly convenient access to the great coal fields of the State might be held to be so far a matter of general con- cern as to support an exercise of the power on the ground of the public benefit. So ' held as to a subterranean mining railway. De Camp v. Hibernia R. R. Co., 47 N. J. L. 43. In Iowa a statute authorizing con- demnation of public ways in such cases was upheld though only the mine-owners may have occasion to use them. Phillips V. Watson, 63 Iowa, 28. In Eldridge v. Smith, 34 Vt. 484, it was held that the manufacture of railroad cars was not so legitimately and necessarily connected with the management of a railroad that the company would be authorized to appro- priate lands therefor. So, also, of land for the erection of dwelling-houses to rent by railroad companies to their employes. But under authority to a railroad com- pany to take land for constructing and operating its road, it may take what is needful for depot grounds. N. Y. & Harlaem R. R. Co. v. Kip, 46 N. Y. 546 ; s. c. 7 Am. Rep. 385. Spur tracks in a city to reach mills and warehouses may be condemned : Toledo S. & M. R. R. Co. v. East Saginaw, &c. Co., 40 N. W. Rep. 436 (Mich.); if necessary to the opera- tion of the road. South Chicago R. R. Co. V. Dix, 109 111. 237. Not if merely to increase its business. Then the use is not public. Chicago & E. I. R. R. Co. v. Wiltse, 116 111. 449 ; Pittsburg, W. & K. Co. V. Benwood Iron Works, 8 S. E. Rep. 453 (W. Va.). In the text we have stated what is un- questionably the result of the authorities ; though if the question were an open one, it might well be debated whether the right to authorize the appropriation of the prop- erty of individuals did not rest rather upon grounds of general public policy than upon the public purpose to which it was proposed to devote it. There are many cases in which individuals or private corporations have been empowered to appropriate the property of others when the general good demanded it, though the purpose was no more public than it is in any case where benefits are to fiow to the community generally from a pri- vate enterprise. The case of appropria- tions for mill-dams, railroads, and drains to improve lands are familiar examples. These appropriations have been sanc- tioned under an application of the term " public purpose," which might also jus- tify the laying out of private roads, wh<-n private property could not otherwise be made available. Upon this general sub- ject the reader is referred to an article by Hon. J. V. Campbell, in the " Bench and Bar," for July, 1871. 654 CONSTITUTIONAL LIMITATIONS. [CH. XV. the establishment of prosperous private enterprises : the puUia use implies a possession, occupation, and enjoyment of the land by the public at large, or by public agencies ; ^ and a due protec- tion to the rights of private property will preclude the govern- ment from seizing it in the hands of the owner, and turning it over to another on vague grounds of public benefit to spring from* the more profitable use to which the latter may devote it. We find ourselves somewhat at sea, however, when we under- take to define, in the light of the judicial decisions, what consti- tutes a public use. It has been said by a learned jurist that, " if the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals for that purpose.^ It is upon this principle that the legislatures of several of the States have au- thorized the condemnation of the lands of individuals for mill sites, where from the nature of the country such mill sites could not be obtained for the accommodation of the inhabitants without overflowing the lands thus condemned. Upon the same principle of public benefit, not only the agents of the government, but also individuals and corporate bodies, have been authorized to take private property for the purpose of making public highways, turn- pike roads, and canals ; of erecting and constructing wharves and basins ; of establishing ferries ; of draining swamps and marshes ; and of bringing water to cities and villages. In all such cases the object of the legislative grant of power is the public benefit derived from the contemplated improvement, whether such im- provement is to be effected directly by the agents of the govern- ment, or through the medium of corporate bodies or of individual enterprise." ^ It would not he entirely safe, however, to apply with much liberality the language above quoted, that "where the publio interest can be in any way promoted by the taking of private ^ Per Tracy, Senator, in Bloodgood v. The use must be by the general public of Mohawk & Hudson R. B. Co., 18 Wend, a locality, and not by particular individ- 9, 60. A use is private so long as struc- \ials or estatjes. HcQuillen v. Hatton, 42 tures to be put on the land " are to remain Ohio St. 202 ; Boss v. Davis, 97 Ind. 79. under private ownership and control, and ^ 2 Kent, Com. 840. no right to their use or to direct their ' Walworth, Chancellor, in Beekman management is conferred upon the pub- v. Saratoga & Schenectady B. B. Co., 3 lie." Matter of Kureka Basin, &c. Co., Paige, 45, 73; 8. c. 22 Am. Dec. 679. And 96 N. Y. 42. See Belcher Sugar Befining see Wilson ». Blackbird Creek Marsh Co., Co. «. St. Louis Elev. Co., 82 Mo. 121. 2 Pet. 216. CH. XV.] THE EMINENT DOMAIN. 655 property," the taking can be considered for a public use. It is certain that there are very many Cases in which the property of some individual owners would be likely to be better employed or occupied to the advancement of the public interest in other hands than in their own ; but it does not follow from this circumstance alone that they may rightfully be dispossessed. It may be for the public benefit that all the wild lands of t^e State be improved and cultivated, all the low lands drained, all the unsightly places beautified, all dilapidated buildings replaced by new ; because all these tilings tend to give an aspect of beauty, thrift, and comfort to the countrj', and thereby to invite settlement, increase the value of lands, and gratify the public taste ; but the common law has never sanctioned an appropriation of property based upon these considerations alone ; and some further • element must therefore be involved before the appropriation can be regarded as sanctioned by our constitutions. The reason of the case and the settled practice of free governments must be our guides in deter- mining what is or is not to be regarded a public use ; and that only can be considered such where the government is supplying its own needs, or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience, or welfare, which, on account of their peculiar character, and the difficulty — perhaps impossibility — of making provision for them otherwise, it is alike proper, useful, and needful for the government to provide. Every government is expected to make provision for the public ways, and for this purpose it may seize and appropriate lands. And as the wants of traffic and travel require facilities beyond those afforded by the common highway, over which any one may pass with his own vehicles, the government may establish the higher grade of highways, upon some of whichyonly its own vehicles can be allowed to run, while others, differently con- structed, shall be open to use by all on payment of toll. The common highway is kept in repair by assessments of labor and money ; the tolls paid upon turnpikes, or the fares on railways, are the equivalents to these assessments ; and when these im- proved ways are required by law to be kept open for use by the public impartially, they also may properly be called highways, and the use to which land for their construction is put be denomi- nated a public use. The government also provides court-houses for the administration of justice; buildings for its seminaries of instruction;^ aqueducts th convey pure and wholesome water 1 V^illiams k. School District, 33 Vt. Mass. 512; Long v. Fuller, 68 Pa. 271. See Hooper v. Bridgewater, 102 170. 656 CONSTITUTIONAL LIMITATIONS. [CH. XV. into large towns ; ^ it builds levees to prevent the country being overflowed by the rising streams ; ^ it may cause drains to be constructed to relieve swamps and marshes of their stagnant water ; ^ and other measures of general utility, in which the public at large are interested, and which require the appropriation of private property, are also within the power, where they fall within the reasons underlying the cases mentioned.* 1 Reddall v. Bryan, 14 Md. 444 ; Kane V. Baltimore, 15 Md. 240 ; Gardner v. Newburg, 2 Johns. Cb. 162 ; s. c. 7 Am. Dec. 526; Ham v. Salem, 100 Mass. 350; Burden v. Stein, 27 Ala. 104; Kicbe o. Bar Harbor Water Co., 75 Me. 91 ; Olm- sted V. Proprs. Morris Aqueduct, 46 N. J. L. 495 ; Lake Fleasanton W. Co. v. Contra Costa W. Co., 67 Cal. 659. Where land was to be taken for a canal, and it was set forth that " the uses for which said water is intended and designed are mining, irri- gation, manufacturing, and household and domestic purposes," it was held a suffi- cient statement of public uses. Cum- mings V. Peters, 56 Cal. 593. A canal to bring logs and water to a city is for a public purpose. Dalles Lumbering Co. v. Urquhart, 16 Oreg. 57. 2 Mithoff V. Carrollton, 12 La. Ann. 185 ; Cash v. Wliitworth, 13 La. Ann. 401; Inge v. Police Jury, 14 La. Ann. 117. " Anderson v. Kerns Draining Co., 14 Ind. 199 ; Beeves v. Treasurer of Wood County, 8 Ohio St. 333. See a clear statement of the general principle and its necessity in the last mentioned case. The drains, however, which can be authorized to be cut across the land of unwilling parties, or for which individuals can be taked, must not be mere private drains, but must have reference to the public health, convenience, or welfare. Reeves v. Treasurer, &c., supra. And see People v. Hearing, 27 N.Y. 306. It is said in a New Jersey case that an act for the drainage of a large quantity of land, which in its present condition is not only worthless for cultivation but unfit for residence, and for an assessment of the cost by benefits, is for a purpose sufficiently pub- lic to justify an exercise of the right of eminent domain. Matter of Drainage of Land's, 85 N, J. 497. It is competent under the eminent dbmain to appropriate and remove a dam owned by private par- ties, in order to reclaim a considerable body of lands flowed by means of it, paying the owner of the dam its value. Talbot V. Hudson, 16 Gray, 417. See the valuable note to Beekman v. Railroad Co., 22 Am. Dec. 686, where the authori- ties as to what is a public use are collated. ^ Such, for instance, as the construc- tion of a public park, which in large cities is as much a matter of public util- ity as a railway, or a supply of pure water. See Matter of Central Park Ex- tension, 16 Abb. Pr. Rep. 66 ; Owners of Ground v. Mayor, &c. of Albany, 15 Wend. 374; Brooklyn Park Com'rs v. Armstrong, 46 N. Y. 234 ; s. c. 6 Am. Rep. 70; County Court o. Griswold, 68 Mo. 176. The legislature may authorize land to be taken by an exposition com- pany. Rees' App. 12 Atl. Rep. 427 (Pa.). Or by a boom company for the purposes of a boom. Patterson v. Mississippi, &c.. Boom Co., 3 Dill. 466. Or for the pur- poses of a telegraph line. Turnpike Co. V. News Co., 43 N. J. 381 ; New Orleans R. R. Co. V. Southern Tel. Co., 53 Ala. 211 ; Pierce v. Drew, 136 Mass. 75. Or sewers in cities. Hildreth v. Lowell, 11 Gray, 345. Or for a market. Re Cooper, 28 Hun, 515. A city may be authorized to appropriate lands in order to fill them up, and thereby abate a nuisance upon them. Dingley v. Boston, 100 Mass. 544. But it may not appropriate a wharf to lease it to a private corporation. Belcher Sugar Refining Co. v. St. Louis Elev. Co., 82 Mo. 121. A private corporation may be empowered to exercise the right of eminent domain to obtain a way along which to lay pipe for the transportation of oil to a railroad or navigable water. West Va. Transportation Co. v. Volcanic Oil & Coal Co., 5 W. Va. 382. It is held in Evergreen Cemetery v. New Haven, 43 Conn. 234 ; Edgecombe v. Bur- lington, 46 Vt. 218, and Balch v. Com- missioners, 103 Mass. 106, that lands may be appropriated under this power for a CH. XV.] THE EMINENT DOMAIN. 657 Whether the power of eminent domain can rightfully be exer- cised in the condemnation of lands for manufacturing purposes where the manufactories are to be owned, and occupied by indi- viduals is a question upon which the authorities are at variance. Saw-mills, grist-mills, and various other manufactories are cer- tainly a public necessity ; and while the country is new, and capi- tal not easily attainable for their erection, it sometimes seems to be essential that government should offer large inducements to par- ties who will supply this necessity. Before steam came into use, water was almost the sole reliance for motive power ; and as reser- voirs were generally necessary for this purpose, it would some- times happen that the owner of a valuable mill site was unable to render it available, because the owners of lands which must be flowed to obtain a reservoir would neither consent to the construc- tion of a dam, nor sell their lands except at extravagant and in- admissible prices. The legislatures in some of tlie States have taken the matter in hand, and have surmounted the difficulty, sometimes by authorizing the land to be appropriated, and at othei; times by permitting the erection of the dam, but requiring the mill- owner to pay annually to the proprietor of the land the damages caused by the flowing, to be assessed in some impartial mode.^ The reasons for such statutes have been growing weaker with the introduction of steam power and the progress of improvement, but their validity has repeatedly been recognized in some of the States, and probably the same courts would continue still to recognize it, notwithstanding the public necessity may no longer appear to de- mand such laws.2 The rights granted by these laws to mill-owners are said by Chief Justice Shaw, of Massachusetts, to be " granted for the better use of the water power, upon considerations of public policy and the general good ; " * and in this view, and in order to cemetery; but in Matter of Deansville dated Channel Co. v. Bailroad Co., 51 Cemetery Association, 66 N. Y. 569, it is Cal. 261 ; Edgewood K. K. Co.'s Appeal, decided that this cannot be done for the 79 Pa. St. 257. exclusive use of a private corporation. i See Angell on Watercourses, c. 12, Land may not be taken for a private for references to the statutes on this warehouse and dock company : Matter subject. of Eureka Basin, &c. Co., 96 N. T. 42 ; ^ « T^g encouragement of mills has nor for a railroad along the bottom of the always been a favorite object with the Niagara CliSs. Matter of Niagara Falls legislature ; and though the reasons for & W. Ey. Co., 108 N. Y. 375. it may have ceased, the favor of the The development of mines has been legislature continues." Wolcott Woollen held such a matter of public interest as Manufacturing Co. v. Upham, 5 Pick. 292, would justify an exercise of the eminent 294. The practice in Michigan has been domain. Hand Gold Mining Co. u. Packer, different. See Ryerson v. Brown, 35 59 Ga. 419 ; Dayton Mining Co. v. Sea- Mich. .333 ; 8. c. 24 Am. Rep. 564. well, 11 Nev. 394. But see Salt Com- ' French u. Braintree Manufacturing pany v. Brown, 7 W. Va. 191 ; Consoli- Co., 23 Pick. 216, 220. 42 658 CONSTITUTIONAL LIMITATIONS. [CH. XV. render available a valuable propei-ty which might otherwise be made of little use by narrow, selfish, and unfriendly conduct on the part of individuals, such laws may perhaps be sustained on the same grounds which support an exercise of the right of eminent domain to protect, drain, and render valuable the lands which, by the overflow of a river, might otherwise be an extensive and worthless swamp.^ ^ Action on the case for raising a dam across the Merrimac Kiver, by which a mill stream emptying into that river, above the site of said dam, was set back and overflowed, and a mill of the plaintiff situated thereon, and the mill privilege, were damaged and destroyed. Demurrer to the declaration. The defendant com- pany were chartered for the purpose of constructing a dam across the Merrimac Kiver, and constructing one or more locks and canals, in connection with said dam, to remove obstructions in said river by falls and rapids, and to create a water power to be used for mechanical and manufacturing purposes. The defend- ants claimed that they were justified in what they had done, by an act of the le- gislature exercising the sovereign power of the State, in the right of eminent do- main ; that the plaintiff's property in the mill and mill privilege was taken and ap- propriated under this right ; and that his remedy was by a claim of damages under the act, and not by action at commoi. law as for a wrongful and unwarrantable encroachment upon his riglit of property. Shaw, Ch. J. : " It is then contended that if tliis act was intended to authorize the defendant company to take the mill power and mill of the plaintiff, it was void be- cause it was not taken for public use, and it was not within the power of the gov- ernment in the exercise of the right of eminent domain. This is the main ques- tion. In determining it we must look to the declared purposes of the act ; and if a public use is declared, it will be so held, unless it manifestly appears by the pro- visions of the act that they can have no tendency to advance and promote such public use. The declared purposes are to improve the navigation of the Merri- mac River, and to create a large mill power for mechanical and manufacturing purposes. In general, whether a particu- lar structure, as a bridge, or a lock, or canal, or road, is for the public use, is a question for the legislature, and which may be presumed to have been correctly decided by them. Commonwealth v. Breed, 4 Pick. 460. That the improve- ment of the navigation of a river is done for the public use has been too frequently decided and acted upon to require au- thorities. And so to create a wholly arti- ficial navigation by canals. The estab- lishment of a great mill power for manu- facturing purposes, as an object of great public interest, especially since manu- facturing has come to be one of the great public industrial pursuits of the Com- monwealth, seems to have been regarded by the legislature, and sanctioned by the jurisprudence of the Commonwealth, and in our judgment rightly so, in determin- ing what is a public use, justifying the exercise of right of eminent domain. See St. 1825, 0. 148, incorporating the Salem Mill Dam Corporation ; Boston & Rox- bury Mill Dam Corporation v. Newman, 12 Pick. 467. The acts since passed, and the cases since decided on this ground, are very numerous. That the erection of this dam would have a strong and di- rect tendency to advance both these public objects, there is no doubt. We are therefore of opinion that the powers conferred on the corporation by this act were so done within tlie scope of the au- thority of the legislature, and were not in violation of the Constitution of the Commonwealth." Hazen v. Essex Com- pany, 12 Cush. 475, 477. See also Bos- ton & Roxbury Mill Corporation v. New- man, 12 Pick. 467 ; Fiske v. Framingham Manufacturing Co., 12 Pick. 67 ; Harding V. Goodlett, 3 Yerg. 41 ; s. o. 24 Am. Dec. 546. The courts of Wisconsin have sus- tained such laws. Newcome v. Smith, 1 Chand. 71 ; Thien v. Voegtlander, 3 Wis. 461 ; Pratt i-. Brown, 3 Wis. 603. But with some hesitation in later cases. See Fisher V. Horricon Co., 10 Wis. 351 ; Curtis v. Whipple, 24 Wis. 350. And see the note of Judge Redfield to Allen v. Inhabitants CH. XV.] THE EMINENT DOMAIN. 659 On the other hand, it is said that the legislature of New York has never exercised the right of eminent domain in favor of mills of any kind, and that " sites for steam-engines, hotels, churches, and other public conveniences might as well be taken by the exer- cise of this extraordinary power." ^ Similar views have been taken by the Supreme Courts of Alabama and Michigan.^ It is quite possible that, in any State in which this question would be entirely a new one, and where it would not be embarrassed by long acqui- escence, or by either judicial or legislative precedents, it might be held that these laws are not sound in principle, and that there is no such necessity, and consequently no such imperative reasons of public policy, as would be essential to support an exercise of the right of eminent domain.^ But accepting as correct the de- cisions which have been made, it must be conceded that the term " public use," as employed in the law of eminent domain, has a meaning much controlled by the necessity, and somewhat different from that which it bears generally.* 2 Byerson v. Brown, 35 Mich. 833 ; s. c. 24 Am. Rep. 661 ; Saddler v. Langham, 34 Ala. 311. In this last case, however, it was assumed that lands for the purposes of grist-mills which grind fir toll, and were required to serve the public impartially, might, under proper legislation, be taken under the right of eminent domain. The case of lioughbridge v. Harris, 42 Ga. 500, is contra. In Tyler v. Beacher, 44 Vt. 648, 8. c. 8 Am. Eep. 398, it was held not competent, where the mills were sub- ject to no such requirement. See the case, 8 Am. Rep. 398. And see note by Redfield, Am. Law Reg., Aug. 1873, p. 493. ' See this subject in general discussed in a review of Angell on Watercourses, 2 Am. Jurist, p. 25. * In People v. Township Board of Salem, 20 Mich. 452, the court consider the question whether a use which is re- garded as public for the purposes of an exercise of the right of eminent domain, is necessarily so for the purposes of taxa- tion. They say: " Reasoning by analogy from one of the sovereign powers of gov- ernment to another is exceedingly liable to deceive and mislead. An object may be fniblic in one sense and for one pur- pose, when in a general sense and for other purposes it would be idle or mis- leading to apply the same term. All governmental powers exist for public purposes, but they are not necessarily to of Jay, Law Reg., Aug. 1873, p. 493. And those of Connecticut. Olmstead v. Camp, 33 Conn. 532. And of Maine. Jordan v. Woodward, 40 Me. 317. And of Minnesota. Miller v. Troost, 14 Minn. 365. And of Kansas. Venard v. Cross, 8 Kan. 248 ; Harding v. Funk, 8 Kan. 815. And of Indiana. Hankins v, Law- rence, 8 Blackf. 266. And they have been enforced elsewhere without question. Burgess v. Clark, 13 Ired. 109 ; McAfee's Heirs v. Kennedy, 1 Lit. 92 ; Smith v. Connelly, 1 T. B. Monr. 58 ; Shackleford V. CofEey, 4 J. J. Marsh. 40; Crenshaw v. Slate River Co., B^Rand. 245; Gammelp. Potter, 6 Iowa, 548. The whole subject was very fully considered, and the valid- ity of such legislation affirmed, in Great Falls Manuf. Co. v. Femald, 47 N. H. 444. And see Ash v. Cummings, 50 N. H. 691. In Head v. Amoskeag Co., 113 U. S. 9, such an act was upheld as a regula- tion of the manner in which the rights of proprietors adjacent to a stream may be enjoyed. In Loughbridge v. Harris, 42 Ga. 500, an act for the condemnation of land for a grist-mill was held unconstitu- tional, though the tolls were regulated, and discrimination forbidden. In Newell V. Smith, 15 Wis. 101, it was held not constitutional to authorize the appropria- tion of the property, and leave the owner no remedy except to subsequently recover its value in an action of trespass. 1 Hay V. Cohoes' Company, 3 Barb. 47. 660 CONSTITUTIONAL LIMITATIONS. [CH. XV. The question what is a public use is always one of law. Defer- ence will be paid to the legislative judgment, as expressed in be exercised under the same conditions of public interest. The sovereign police power which the State possesses is to be exercised only for the general public wel- fare, but it reaches to every person, to every kind of business, to every species of property within the Commonwealth. The conduct of every individual, and the use of all property and of all rights is regulated by it, to any extent found neces- sary for the preservation of the public order, and also for the protection of the private rights of one individual against encroachments by others. The sover- eign power of taxation is employed m a great many cases where the power of eminent domain might be made more im- mediately efficient and available, if con- stitutional principles could suffer it to be resorted to ; but each of these has its own peculiar and appropriate sphere, and the object which is public for the demands of the one is not necessarily of a character to permit the exercise of the other." " If we examine the subject critically, we shall find that the most important consideration in the case of eminent do- main is the necessity of accomplishing some public good vhich is otherwise im- practicable ; and we shall also find that the law does not so much regard the means as the need. The power is much nearer akin to that of the public police than to that of taxation; it goes but a step farther, and that step is in the same direction. Every man has an abstract right to the exclusive use of his own property for his own enjoyment in such manner as he shall choose; but if he should choose to create a nuisance upon it, or to do anything which would pre- clude a reasonable enjoyment of ad jar cent property, the law would interfere to impose restraints. He is said to own his private lot to the centre of the earth, but he would not be allowed to exca- vate it Indefinitely, lest his neighbor's lot should disappear in the excavation. The abstract right to make use of his own property in his own way is compelled to yield to the general comfort and pro- tection of the community, and to a proper regard to relative rights in others. The situation of his property may even be such that he is compelled to dispose of it because the law will not suffer his regu- lar business to be carried on upon it. A needful and lawful species of manufacture may so injuriously aflect the health and comfort of the vicinity that it cannot be tolerated in a densely settled neighbor- hood, and therefore the owner of a lot in that neighborhood will not be allowed to engage in that manufacture upon it, even though it be his regular and legitimate business. The butcher in the vicinity of whose premises a village has grown up finds himself compelled to remove his business elsewhere, because his right to make use of his lot as a place for the slaughter of cattle has become inconsistent with the superior right of the community to the enjoyment of pure air and the ac- companying blessings and comforts. The owner of a lot within the fire limits of a city may be compelled to part with the property, because he is unable to erect a brick or stone structure upon it, and the local regulations will not permit one of wood. Eminent domain only recognizes and enforces the superior right of the community against the selfishness of in- dividuals in a similar way. Every branch of needful industry has a right to exist, and the community has a right to demand that it be permitted to exist ; and If for that purpose a peculiar locality already in possession of an individual is essential, the owner's right to undisturbed occu- pancy must yield to the superior interest of the public. A railroad cannot go around the farm of every unwilling per- son, and the business of transporting persons and property for long distances by rail, which has been found so essential to the general enjoyment and welfare, could never have existed if it were in the power of any unwilling person to stop the road at his boundary, or to demand unreasonable terms as a condition of pass- ing him. The law interferes in these cases, and regulates the relative rights of the owner and of the community with as strict regard to justice and equity as the circumstances will permit. It does not deprive the owner of his property, bvit it compels him to dispone of so much of it as is essential on equitable terms. While, CH. XV.] THE EMINENT DOMAIN. 661 enactments providing for an appropriation of property, but it will not be conclusive.^ The Talcing of Property. Although property can only be taken for a public use, and the legislature must determine in what cases, it has been long settled that it is not essential the taking should be to or by the State itself, if by any other agency, in the opinion of the legislature, the use can be made equally effectual for the public benefit. There are many cases in which the appropriation consists simply in throwing the property open to use by such persons as may see fit to avail themselves of it ; as in the case of common highways and public parks. In these cases the title of the owner is not disturbed, except as it is charged with this burden ; and the State defends the easement, not by virtue of any title in the property, but by means of criminal proceedings when the general right is disturbed. But in other cases it seems important to take the title ; 2 and in many of these it is convenient, if not necessary, that the taking be, not by the State, but by the municipality for which the use is specially designed, and to whose care and gov- ernment it will be confided. When property is needed for a dis- trict school-house, it is proper that the district appropriate it ; and it is strictly in accordance with the general theory as well as with the practice of our government for the State to delegate to the district the exercise of the power of eminent domain for this special purpose. So a county may be authorized to take lands for its court-house or jail ; a city, for its town hall, its reservoirs of water, its sewers, and other public works of like im- portance. In these cases no question of power arises ; the taking therefore, eminent domain establishes no Burkhart, 41 Ind. 364 ; Scudder v. Tren- indnstry, it so regulates the relative rights ton, &c. Co., 1 N. J. Eq. 694 ; s. o. 23 Am . of all that no individual shall have it in Deo. 756 ; Ryerson v. Brown, 35 Mich, his power to preclude its establishment." 333; s. c. 24 Am. Rep. 564; Beekman £ On this general sutgect see Olmstead v. Railroad Co., 3 Paige, 45 ; s. c. 22 Am. Camp, 33 Conn. 532, in which it was very Deo. 679, and note ; MoQuillen v. Hatton, fully and carefully considered. 42 Ohio St. 202 ; Savannah v. Hancock, 1 Harding v. Goodlett, 3 Terg. 40; 91 Mo. 54 ; 7» r« St. Paul & N. P. Ry. Co., s. c. 24 Am. Dec. 546 ; Bankhead v. 34 Minn. 227. . Brown, 25 Iowa, 540; Chicago, &c. R. R. ^ The fee is not to be taken unless the Co. ». Lake, 71 111. 333; Olmstead ». Camp, purpose requires it. New Orleans, &c. 33 Conn. 551 ; Tyler v. Beacher, 44 Vt. R. R. Co. v. Gay, 32 La. Ann. 471; New 648 ; Mattetof Deansville Cemetery Asso- Jersey Zinc Co. v. Morris Canal, &c. Co., elation, 66 N. Y. 569 ; s. o. 23 Am. Rep. 44 N. J. Eq. 398. See Hibernia R. R. Co. 86 ; Matter of Union Ferry Co., 98 N. T. ». Camp, 47 N. J. L. 518. There are con- 139; Matter of Niagara Falls & W. Ry. stitutional provisions in some States which Co., 108 N. T. 375 ; Loughbrldge v. Har- limit the taking for railroads to a mere ris, 42 Ga. 500; Water Works Co. v. easement. 662 CONSTITUTIONAL LIMITATIONS. [CH. XV. is by the public ; the use is by the public ; and the benefit to ac- crue therefrom is shared in greater or less degree by the whole public. K, however, it be constitutional to appropriate lands for mill dams or mill sites, it ought also to be constitutional that the tak- ing be by individuals instead of by the State or any of its organ- ized political divisions ; since it is no part of the business of the government to engage in manufacturing operations which come in competition with private enterprise ; and the cases must be very peculiar and very rare where a State or municipal corpora- tion could be justified in any such undertaking. And although the practice is not entirely uniform on the subject, the general sentiment is adverse to the construction of railways by the State, and the opinion is quite prevalent, if not general, that they can be better managed, controlled, and operated for the public benefit in the hands of individuals than by State or municipal ofl&cers or agencies. And while there are unquestionably some objections to com- pelling a citizen to surrender his property to a corporation, whose corporators, in receiving it, are influenced by motives of private gain and emolument, so that to them the purpose of the appropri- ation is altogether private, yet conceding it to be settled that these facilities for travel and commerce are a public necessity, if the legislature, reflecting the public sentiment, decide that the general benefit is better promoted by their construction through individuals or corporations than by the State itself, it would clearly be pressing a constitutional maxim to an absurd extreme if it were to be held that the public necessity should only be pro- vided for in the way which is least consistent with the public interest. Accordingly, on the principle of public benefit, not only the State and its political divisions, but also individuals and cor- porate bodies, have been authorized to take private property for the construction of works of public utility, and when duly em- powered by the legislature so to do, their private pecuniary inter- est does not preclude their being regarded as public agencies in respect to the public good which is sought to be accomplished.^ 1 Beekman v. Saratoga & Schenee- Pratt v. Brown, 3 Wis. 603; Swan v. tady R.R. Co., 3 Paige, 73; s. o. 22 Am. Williams, 2 Mich. 427; Stevens v. Mid- Dec. 679; Wilson v. Blackbird Oreek dlesex Canal, 12 Mass. 466 ; Boston Mill Marsh Co., 2 Pet. 245; Buonaparte v. Dam ». Newman, 12 Pick. 467 ; Gilmer w. Camden & Amboy R. R. Co., 1 Bald. Lime Point, 18 Cal. 223 ; Armington v. 205 ; Bloodgood v. Mohawk & Hudson Barnet, 15 Vt. 745 ; White River Turn- R. R. Co., 18 Wend. 9 ; Lebanon v. 01- pike e. Central Railroad, 21 Vt. 590 ; cott, 1 N. H. 339; Petition of Mount Raleigh. &o. R. R. Co. v. Davis, 2 Dev. Washington Road Co., 35 N. H. 134; & Bat. 461 ; Whiteman's Ex'r ». Wilming- CH. XV.] THE EMINENT DOMAIN. 663 The Necessity for the Taking. The authority to determine in any case whether it is needful to permit the exercise of this power must rest with the State itself ; and the question is always one of strictly political charac- ter, not requiring any hearing upon the facts or any judicial deter- mination.^ Nevertheless, when a work or improvement of local importance only is contemplated, the need of which must be de- termined upon a view of the facts whicli the people of the vicinity may be supposed best to understand, the question of necessity is generally referred to some local tribunal, and it may even be sub- mitted to a jury to decide upon evidence.^ But parties interested have no constitutional right to be heard upon the question, unless the State constitution clearly and expressly recognizes and pro- vides for it. On general principles, the final decision rests with the legislative department of the State ; * and if the question is referred to any tribunal for trial, the reference and the opportu- nity for being heard are matters of favor and not of right. The State is not under any obligation to make provision for a judicial contest upon that question. And where the case is such that it is proper to delegate to individuals or to a corporation the power to appropriate property, it is also competent to delegate the authority to decide upon the necessity for the taking.* ton, &c. R. R. Co., 2 Harr. 514 ; Bradley German Coal Co., 118 111. 427 j Matter of V. N. Y. &. N. H. R. R. Co., 21 Conn. Union Ferry Co., 98 N. Y. 139. 294 ; OlmBtead v. Camp, 33 Conn. 532 ; * People i>. Smith, 21 N. Y. 595 ; Ford Eaton V. Boston, C. & M. R. R. Co., v. Chicago & N. W. R. R. Co., 14 Wis. 51 N. H. 504; Moran v. Ross, 79 Cal. 617; Matter of Albany St, 11 Wend. 152; 159. s. c. 25 Am. Dec. 619 ; Lyon u. Jerome, ' Varick e. Smith, 5 Paige Ch. 137 ; 26 Wend. 484 ; Hays v. Risher, 32 Pa. s. o. 28 Am. Dec. 417 ; Aldridge v. Rail- St. 169 ; North Missouri R. R. Co. b. Lack- road Co., 2 Stew. & Port. 199; s. o. 23 land, 25 Mo. 515: Same a. Gott, 25 Mo. Am. Dec. 307. 540 ; Bankhead ». Brown, 25 Iowa, 540 ; 2 Iron R. R. Co. v. Ironton, 19 Ohio Contra Costa R. R. v. Moss, 23 Cal. 323 ; St. 299. The constitutions of some of Matter of Fowler, 53 N. Y. 60; N. Y. the States require the question of the ne- Central, &c. R. R. Co. ». Met. Gas Co., 63 cessity of any specific appropriation to N. Y. 326; Chicago, &c. R. R. Co. v. be submitted to a jury ; and this require- Lake, 71 111. 333 ; Warren v. St. Paul, ment cannot be dispensed with. Mans- &c. R. R. Co., 18 Minn. 384; Smea- field, &c. R. R. Co. v. Clark, 23 Mich, ton v. Martin, 57 Wis. 364 ; State ». 519 ; Arnold v. Decatur, 29 Mich. 77. Stewart, 74 Wis. 620. But where a * United States v. Harris, 1 Sum. 21, general power to condemn is given, for 42 ; Ford a. Chicago, &c. R. R. Co., 14 example, to a railroad company, the ne- Wi's. 609; People «. Smith, 21 N. Y. 595; cessity for its exercise in the taking of Water Works Co. v. Burkhart, 41 Ind. particular property is a judicial question. 364 ■ Tail's Exec. v. Centr. Lunatic Matter of New York Central R. R. Co., Asylum, 4 S. E. Rep. 697 ( Va.). If the 66 N. Y. 407 ; In re St. Paul & N. P. Ry. use is public, the legislative determinar Co., 84 Minn. 227; Olmsted v. Prop'rs tion of necessity is conclusive. ShoU v. Morris Aqueduct, 46 N. J. L. 495; Tracy 664 CONSTITUTIONAL LIMITATIONS. {CH. XV. How much Property may he taken. The taking of property must always be limited to the necessity of the case, and consequently no more can be appropriated in any V. Elizabethtown, &c. E. R. Co., 80 Ky. 259 ; Spring Valley Water Works v. San Mateo Water Works, 64 Cal. 123. In the case first above cited, Denio, J., says: " The question then is, whether the State, in the exercise of the power to appro- priate the property of individuals to a public use, where the duty of judging of the expediency of making the appropria- tion, in a class of cases, is committed to public officers, is obliged to afford to the owners of the property an opportunity to be heard before those officers when they sit for the purpose of making the de- termination. I do not speak now of the process for arriving at the amount of compensation lO be paid to the owners, but of the determination whether, under the circumstances of a particular case, the property required for the purpose shall be taken or not ; and I am of opinion that the State is not under any obligation to make provision for a judicial contest upon that question. The only part of tlie constitution which refers to the subject is that which forbids private property to be taken for public use without compen- sation, and that which prescribes the manner in which the compensation shall be ascertained. It is not pretended that the statute under consideration violates either of these provisions. There is therefore no constitutional injunction on the point under consideration. The ne- cessity for appropriating private property for the use of the public or of the gov- ernment is not a judicial question. The power resides in the legislature. It may be exercised by means of a statute which shall at once designate the property to he appropriated and the purpose of the appropriation ; or it may be delegated to public officers, or, as it has been repeat- edly held, to private corporations estab- lished to carry on enterprises in which tlie public are interested. There is no restraint upon the power, except that re- quiring compensation to be made. And wliere the power is committed to public officers, it is a subject of legislative dis- cretion to determine what prudential regulations shall be established to secure a discreet and judicious exercise of the authority. Tlie constitutional provision securing a trial by jury in certain cases, and that which declares that no citizen shall be deprived of his property without due process of law, have no application to the case. The jury trial can only be claimed as a constitutional right where the subject is judicial in its character. The exercise of the right of eminent do- main stands on the same ground with the power of taxation. Both are emanations of the law-making power. Tliey are the attributes of political sovereignty, for the exercise of which the legislature is under no necessity to address itself to the courts. In imposing a tax, or in appropriating the property of a citizen, or a class of citizens, for a public purpose, with a proper provision for compensation, the legislative act is itself due process of law ; though it would not be if it should under- take to appropriate the property of one citizen for the use of another, or to con- fiscate the property of one person or a class of persons, or a particular descrip- tion of property, upon some view of pub- lic policy, where it could not be said to be taken for a public use. It follows from these views that it is not necessary for the legislature, in the exercise of the right of eminent domain, either directly, or indirectly through public officers or agents, to invest the proceedings with the forms or substance of judicial process. It may allow the owner to intervene and participate in the discussion before the officer or board to whom the power is given of determining whether the appro- priation shall be made in a particular case, or it may provide that the officers < shall act upon their own views of propri- ety and duty, without the aid of a foren- sic contest. The appropriation of the property is an act of public administra- tion, and the form and manner of its per- formance is such as the legislature in its discretion prescribe." The fact that a road company has pur- chased a right of way across a man's land and bargained with him to build it, will not preclude its appropriating a right of CH. XV.J THE EMINENT DOMAIN. 665 instance than the proper tribunal shall adjudge to he needed for the particular use for which the appropriation is made. When a part only of a man's premises is needed by the public, the neces- sity for the appropriation of that part will not justify the taking of the whole, even though compensation be made therefor. The moment the appropriation goes beyond the necessity of the case, it ceases to be justified on the principles which underlie the right of eminent domain.* If, however, the statute providing for such appropriation is acted upon, and the property owner accepts the compensation awarded to him under it, he will be precluded by this implied assent from afterwards objecting to the excessive appropriation.^ And where land is taken for a public work, there way over the same land on another line. Cape Girardeau, &c. Boad v. Dennis, 67 Mo. 438. 1 By a statute of New York it was enacted that whenever a part only of a lot or parcel of land should be required for the purposes of a city street, if the commissioners for assessing compensa- tion should deem it expedient to include the whole lot in the assessment, they should have power so to do ; and the part not wanted for the particular street or improvement should, upon the confirma- tion of the report, become vested in the corporation, and might be appropriated to public uses, or sold in case of no such appropriation. Of this statute it was said by the Supreme Court of New York : " If this provision was intended merely to give to the corporation capacity to take property under such circumstances with the consent of the owner, and then to dis- pose of the same, there can be no objec- tion to it ; but if it is to be taken literally, that the commissioners may, against tho consent of the owner, take the whole lot, when only a part is required for public use, and the residue to be applied to pri- vate use, it assumes a power which, with all respect, the legislature did not possess. The constitution, by authorizing the ap- propriation of private property to public use, impliedly declares that for any other use private property shall not be taken from one and applied to the private use of another. It is in violation of natural right ; and if it is not in violation of the letter of the constitution, it is of its spirit, and cannot be supported. This power has been supposed to be convenient when the greater part of a lot is taken, and only a small part left, not required for public use, and that small part of but little value in the hands of the owner. In such case the corporation has been supposed best qualified to take and dispose of such par- cels, or gores, as they have sometimes been called; and probably this assump- tion of power has been acquiesced in by the proprietors. I know of no case where the power has been questioned, and where it has received the deliberate sanction of this court. Suppose a case where only a few feet, or even inches, are wanted, from one end of a lot to widen a street, and a valuable building stands upon the other end of such lot; would the power be con- ceded to exist to take the whole lot, whether the owner consented or not? The quantity of the residue of any lot can- not vary the principle. The owner may be very unwilliTig to part with only a few feet ; and I hold it equally incompetent for the legislature thus to dispose of pri- vate property, whether feet or acres are the subject of this assumed power." Mat- ter of Albany St., 11 Wend. 151 ; s. c. 25 Am. Deo. 618, per Savage, Ch. J. To the same effect is Dunn v. City Council, Har- per, 129. And see Paul v. Detroit, 32 Mich. 108; Baltimore, &o. R. R. Co. v. Pittsburgh, &c. R. R. Co., 17 W. Va. 812. 2 Embury v. Conner, 3 N. Y. 611. There is clearly nothing in constitutional principles which would preclude the legis- lature from providing that a man's prop- erty might be taken with his assent, whedier the assent was evidenced by ; deed or not ; and if he accepts payment, he must be deemed to assent. See Has- kell V. New Bedford, 108 Mass. 208. 666 CONSTITUTIONAL LIMITATIONS. [CH. XV. is nothing in the principle we have stated which will preclude the appropriation of whatever might be necessary for incidental con- veniences : such as the workshops or depot buildings of a railway company ,1 or materials to be used in the construction of their road, and so on. Express legislative power, however, is needed for these purposes ; it will not follow that, because such things are convenient to the accomplishment of the general object, the public may appropriate them without express authority of law ; but the power to appropriate must be expressly conferred, and the public agencies seeking to exercise this high prerogative must be careful to keep within the authority delegated, since the public necessity cannot be held to extend beyond what has been plainly declared on the face of the legislative enactment. What constitutes a Taking of Property. Any proper exercise of the powers of government, which does not directly encroach upon the property of an individual, or dis- turb him in its possession or enjoyment, will not entitle him to compensation, or give him a right of action.'^ If, for instance, the State, undei* its power to provide and regulate the public highways, should authorize the construction of a bridge across a navigable river, it is quite possible that all proprietary interests iu land upon the river might be injuriously affected ; but such injury could no more give a valid claim against the State for dam- ages, than could any change in the general laws of the State, which, while keeping in view the general good, might injuriously 1 Chicago, B. & Q. B. R. Co. v. Wil- waukee, 16 Wis. 247; Richmond, &c. Co. son, 17 III. 123; Low v. Galena & C. U. a. Rogers, 1 Duvall, 135; Harvey v. Lack- B. B. Co., 18 111. 324 ; Giesy v. Cincin- awanna, &c. B. B. Co., 47 Pa. St. 428 ; nati, W. & Z. R. R. Co., 4 Ohio St. 308. Tinicum Fishing Co. u. Carter, 61 Pa! Or extra track room. Matter of Staten St. 21 ; Railroad Co. v. Richmond 96 Island Transit Co., 103 N. Y. 251. U. S. 521. The discontinuance of a high- * Zimmerman v. Union Canal Co., 1 way does not entitle parties incommoded W. & S. 846 Shrunk v. Schuylkill Navi- thereby to compensation, Fearing ». Ir- gation Co., 14 S. & R. 71 ; Monongahela win, 55 N. Y. 486. Incidental injury to Navigation Co. v. Coons, 6 W. & S. 101 ; adjoining lot-owners from constructing a Davidson v. Boston & Maine B. R. Co., 3 tunnel in a street to pass under a river Cush. 91 ; Gould v. Hudson River R. R. will give no right of action. Transporta- Co., 12 Barb. 616, and 6N. Y. 522; Bad- tion Co. v. Chicago, 99 U. S. 635. See cliff ». Mayor, &c. of Brooklyn, 4 N. Y. the case in the Circuit Court, 7 Biss. 45. 195 ; Murray v. Menefee, 20 Ark. 561 ; But a railroad company cannot be re- Hooker V. New Haven & Northampton quired at its own expense to construct and Co., 14 Conn. 146; People v. Kerr, 27 maintain across its right of way every N. Y. 188; Fuller v. Edings, 11 Rich, new highway which may be laid out over Law, 239 ; Eddings v. Seabrook, 12 Rich. it. That would be a taking without just Law, 504; Biohardson ». Vermont Cen- compensation. People u. Lake Shore Sea. tral R. B. Co., 25 Vt. 465; Kennett's Ry. Co., 52 Mich. 277; Chicago & G. T. Petition, 24 N. H. 139; Alexander v. Mil- Ry. Co. v. Hough, 61 Mich. 507. CH. XV.] THE EMINENT DOMAIN. 667 affect particular interests.^ So if by the erection of a dam in order to improve navigation the owner of a fishery finds it dimin- ished in value,^ or if by deepening the channel of a river to im- prove the navigation a spring is destroyed,^ or by a change in the grade of a city street the value of adjacent lots is diminished,* — 1 Davidson ti. Boston & Maine R. R. Co., 3 Cush. 91 ; Transportation Co. v. Chicago, 99 U. S. 635. ^ Slirunk v. Schuylkill Navigation Co., 14 S. & B. 71. In Green v. Swift, 47 Cal. 636, and Green v. State, 73 Cal. 29, it is held that where one finds his land injured in consequence of a change in tlie current of a river, caused by straightening it, he cannot claim compensation as of right. " Commonwealth u. Kicliter, 1 Pa. St. 467. But in Winklemans v. Des Moines, &c. Ry. Co., 62 Iowa, 11, the value of a spring destroyed in railroad construction is held recoverable. It is justly said by Mr. Justice Miller, in Pumpelly o. The Green Bay, &c. Co., 13 Wall. 166, 180, that the decisions " tliat for the consequential injury to the property of an individual from the prosecution of improvement of roads, streets, rivers, and other highways for the public good, there is no redress," " have gone to the extreme and limit of sound judicial construction in favor of this principle, and in some cases teyond it and it remains true that where real estate is actually invaded by superin- duced additions of water, earth, sand, or other material, or by having any artifi- cial structure placed on it, so as effectu- ally to destroy or impair its usefulness, it is a taking within the meaning of the Constitution." See also Arimond «. Green Bay, &c. Co., 31 Wis. 316; Aurora v. Reed, 57 111. 29; s. c. 11 Am. Rep. 1. This whole subject is most elaborately considered by Smith, J., in Eaton v. Bos- ton, C. & M. R. R. Co., 51 N. H. 504. It was decided in that case that, notwith- standing a party liad received compensa- tion for the taking of his land for a rail- road, he was entitled to a further remedy at the common law for the flooding of his land in consequence of the road being cut through a ridge on the land of another ; and that this flooding was a taking of his property within the meaning of the con- stitution. The cases to the contrary are all considered by the learned judge, who is able to adduce very forcible reasons for his conclusions. Compare Aldrich v. Cheshire It. R. Co., 21 N. H. 859 ; West Branch, &c. Canal Co. v. Mulliner, 68 Pa. St. 857 ; Bellinger v. N. Y. Central R. R. Co., 23 N. Y. 42 ; Hatch v. Vt. Cen- tral R. R. Co., 25 Vt. 49 ; and cases, ante, p. 646. * British Plate Manufacturing Co. v. Meredith, 4 T. R. 794 ; Matter of Furman Street, 17 Wend. 649; Radclifl's Ex'rs v. Mayor, &c. of Brooklyn, 4 N. Y. 195; Graves v. Otis, 2 Hill, 466; Wilson v. Mayor, &c. of New York, 1 Denio, 595 ; Murphy v. Chicago, 29 111. 279 4^ Roberts V. Chicago, 26 111. 249 ; Charlton v. Alle- ghany City, 1 Grant, 208; La Fayette b. Bush, 19 Ind. 326 ; Macy v. Indianapolis, 17 Ind. 267; Vincennes v. Richards, 23 Ind. 881 ; Green v. Beading, 9 Watts, 382; O'Connor v. Pittsburg, 18 Pa. St. 187; In re Ridge Street, 29 Pa. St. 891 ; Callendar v. Marsh, 1 Pick. 418 ; Creal v. Keokuk, 4 Greene (Iowa), 47 ; Smith V. Washington, 20 How. 135 ; Skin- ner V. Hartford Bridge Co., 29 Conn. 523 ; Benden v. Nashua, 17 N. H. 477 ; Pontiao V. Carter, 32 Mich. 164; Goszler v. Georgetown, 6 Wheat. 593; Stewart v. Clinton, 79 Mo. 603 ; Kehrer v. Richmond, 81 Va. 745 ; Meth. Bpis. Church v. Wy- andotte, 31 Kan. 721. See cases, ante, p. 251, and Conklin v. New York, &c. By. Co., 102 N. Y. 107 ; Uline v. New York, .&c. R. R. Co., 101 N. Y. 98; Henderson V. Minneapolis, 32 Minn. 319. Compare cases, post, p. 690, note. The cases of McComb V. Akron, 15 Ohio, 474 ; 8. c. 18 Ohio, 229, and Crawford v. Delaware, 7 Ohio St. 459, are contra. Those cases, however, admit that a party whose inter- ests are injured by the original establish- ment of a street grade can have no claim to compensation ; but they hold that when the grade is once established, and lots are improved in reference to it, the corporation has no right to change the grade afterwards, except on payment of the damages. And see Johnson v. Par- kersburg, 16 W. Va. 402; a. c. 37 Am. Rep. 779. That if the lateral support to CONSTITUTIONAL LIMITATIONS. [CH. XV. in these and similar cases the law affords no redress for the injury. So if in conseqnence of the construction of a public work an injury occurs, but the work was constructed on proper plan and without negligence, and the injury is caused by acci- dental and extraordinary circumstances, the injured party cannot demand compensation.^ This principle is peculiarly applicable to those cases where property is appropriated under the right of eminent domain. It must frequently occur that a party will find his rights seriously affected, though no property to which he has lawful claim is actually appropriated. As where a road is laid out along the line of a man's land without taking any portion of it, in consequence of which he is compelled to keep up the whole of what before was a partition fence, one half of which his neighbor was required to support.^ No property being taken in this case, the party has no relief unless the statute shall give it. The loss is damnum absque injuria. So a turnpike company, whose profits will be diminished by the construction of a railroad along the same gen- eral line of travel, is not entitled to compensation.^ So where a his land is removed by grading a street the owner is entitled to compensation, see O'Brien v. St. Paul, 25 Minn. 331 ; Buskirk v. Strickland, 47 Mich. 389. 1 As in Sprague v. Worcester, 13 Gray, 193, where, in consequence of the erec- tion of a bridge over a stream on which a mill was situated, the mill was injured by an extraordinary rise in the stream ; the bridge, however, being in all respects properly constructed. In Hamilton v. Vieksburg, &c. R. B. Co., 119 U. S. 280, the obstruction of a navigable stream by unavoidable delay in rebuilding a lawful bridge was held not actionable. And see Brown v. Cayuga, &c. R. B. Co., 12 N. Y. 486, where bridge proprietors were held liable for similar ii^urieg on the ground of negligence. And compare Norris v. Vt. Central B. R. Co., 28 Vt. 99, with Mellen V. Western B. E. Corp., 4 Gray, 301. And see note on preceding page. The incon- Tenience from smoke and jar caused by the Careful construction and operation of a railroad near property is not action- able. Carroll v. Wis. Cent. R. R. Co., 40 Minn. 168; Beseman v. Pa. R. R. Co., 50 N. J. L. 235. Compare Baltimore & O. R. R. Co. u. Fifth Bapt. Ch., 108 U. S. 817 ; Cogswell v. New York, &c. R. R. Co., 103 N. Y. 10. 2 Kennett's Petition, 4 Post. 139. See Eddings v. Seabrook, 12 Rich. Law, 504 ; Slatten v. Des Moines Valley R. R. Co., 29 Iowa, 148 ; Hoagu. Switzer, 61 111. 294. Merely crossing a railroad by another track is not a taking of property. Le- high V. R. B. Co. V. Dover, &c. R. E. Co., 43 N. J. 528. But this cannot be universally true. See Lake Shore, &c. E. R. Co. V. Chicago, &c. B. R. Co., 100 III. 21. Damage for the resulting inconven- ience may be allowed as well as for main- taining the crossing. Chicago & W. I. R. R. Co. V. Englewood, &o. Ry. Co., 115 III. 375. 8 Troy & Boston B. R. Co. ». North- ern Turnpike Co., 16 Barb. 100. See La Fayette Flank Road Co. ». New Albany & Salem B. R. Co., 13 Ind. 90; Rich- mond, &o. Co. V. Rogers, 1 Duvall, 135. So an increased competition with a party's business caused by the construction or extension of a road is not a ground of claiqi. Harvey v. Lackawanna, &c. R. R. Co., 47 Pa. St. 428. "Every great public improvement must, almost of ne- cessity, more or less afifect individual con- venience and property ; and where the injury sustained is remote and consequen- tial, it is damnum absque injuria, and is to be borne as a part of the price to be paid for the advantages of the social condition. This is founded upon the principle that CH. XV.] THE EMINENT DOMAIN. 669 railroad company, in constructing their road in a proper manner on their own land, raised a high embankment near to and" in front of the plaintiff's house, so as to prevent his passing to and from the same with the same convenience as before, this conse- quential injury was held to give no claim to compensation.^ So the owner of dams erected by legislative authority is without remedy, if they are afterwards rendered valueless by the construc- tion of a canal.2 And in New York it has been held that, as the 2 Susquehanna Canal Co. v. Wright, 9 W. & S. 9 ; Monongaliela Navigation Co. V. Coons, 6 W. & S. 101. In any case, if parties exercising the right of eminent domain shall cause ii^ury to others by a negligent or improper construction of their work, they may be liable in dam- ages. Rowe V. Granite Bridge Corpora- tion, 21 Pick. 348 ; Sprague v. Worcester, 13 Gray, 193. And if a public work is of a character to necessarily disturb the oc- cupation and enjoyment of his estate by one whose land is not taken, he may have an action on the case for the injury, notwithstanding the statute makes no provision for compensation. As where the necessary, and not simply the acci- dental, consequence was to flood a man's premises with water, thereby greatly di- minishing their value. Hooker i;. New Haven & Northampton Co., 14 Conn. 146 ; s. c. 15 Conn. 312 ; Evansville, &c. E. E. Co. V. Dick, 9 Ind. 433 ; Robinson V. N. Y. & Erie E. E. Co., 27 Barb. 612; Trustees of Wabash & Erie Canal V. Spears, 16 Ind. 441 ; Eaton v. Boston, C. & M. R. R. Co., 61 N. H. 504 ; Ashley V. Port Huron, 36 Mich. 296. So, where, by blasting rock in making an excar vation, the fragments are thrown upon adjacent buildings so as to render their occupation unsafe. Hay v. Cohoes Co., 2 N. Y. 159 ; Tremain v. Same, 2 N. Y. 163; Carman v. Steubenville & Indiana R. R. Co., 4 Ohio St. 399; Sunbury & Erie R. R. Co. o. Hummel, 27 Pa. St. 99 ; Georgetown, &c. R. R. Co. v. Eagles, 9 Col. 544. See Mairs v. Manhattan, &c. Ass., 89 N. Y. 498. There has been some disposition to hold private cor- porations liable for all incidental damages caused by their exercise of the right of eminent domain. See Tinsman v. Belvi- dere & Delaware R. R. Co., 26 N. J. 148; Alexander v. Milwaukee, 16 Wig. 247. the general good is to prevail over par- tial individual convenience." Lansing v. Smith, 8 Cow. 146, 149. ' Eichardson v. Vermont Central E. E. Co., 25 Vt. 465. But qucere if this could be so, if the efSect were to prevent access from the lot to the highway. In certain Indiana cases it is said that the right of the owner of adjoining land to the use of the highway is as much property as the land itself; that it is appurtenant to the land, and is protected by the constitution. Haynes v. Thomas, 7 Ind. 38 ; Protzman V. Indianapolis, &c. E. E. Co., 9 Ind. 467 ; New Albany & Salem E. E. Co. v. O'Daily, 13 Ind. 453. The same doc- trine is recognized in Crawford v. Dela- ware, 7 Ohio St. 459 ; Street Eailway v. Cumminsville, 14 Ohio St. 528 ; Schneider D.Detroit, 40 N. W. Eep. 329 (Mich.); Columbus &■ W. Ey. Co. v. Witherow, 82 Ala. 190; Shealy v. Chicago, &c. Ey. Co., 72 Wis. 471. See also In- dianapolis E. E. Co. V. Smith, 52 Ind. 428; Terre Haute & L. R. R. Co. v. Bis- sell, 108 Ind. 113 ; Indiana, B. & W. Ey. Co. V. Eberle, 110 Ind. 542; Pekin v. Brereton, 67 111. 477 ; Pekin ». Winkel, 77 111. 56 ; Grand Rapids, &c. R. R. Co. o. Heisel, 38 Mich. 62 ; b. o. 31 Am. Rep. 306. In the Vermont case above cited it was held that an excavation by the company on their own land, so near the line of the plaintiff's that his land, with- out any artificial weight thereon, slid into the excavation, would render the com-: pany liable for the injury ; the plaintiff being entitled to the lateral support for his land. But if to bridge a cut made by a railroad in crossing a street the grade in front of a lot is raised, it is held not a taking for a new use, though access to the lot is cut off. Henderson v. Min- neapolis, 32 Minn. 319; Conklin v. New York, &c. Ey. Co., 102 N. Y. 107. The same principle is followed in Uline v. New York, &o. R. R. Co., 101 N. Y. 98. 670 CONSTITUTIONAL LIMITATIONS. [oh. XV. land where the tide ebbs and flows, between high and low water mark, belongs to the public, the State may lawfully authorize a railroad company to construct their road along the water front below high-water mark, and the owner of the adjacent bank can claim no compensation for the consequential injury to his inter- ests.i So the granting of a ferry right with a landing on private property within a highway terminating on a private stream is not an appropriation of property ,2 the ferry being a mere continuation of the highway, and the landing place upon the private property having previously been appropriated to public uses. These cases must suffice as illustrations of the principle stated, thougii many others might be referred to. On the other hand, any injury to the property of an individual which deprives the owner of the ordinary use of it, is equivalent to a taking, and entitles him to compensation.^ Water front on a stream where 1 Gould V. Hudson River B. E. Co., 6 N. Y. 622. And see Stevens v. Paterson, &c. K. R. Co., 34 N. J. 532 ; Tomlhi v. Dubuque, &f. R. R. Co., 32 Iowa, 106; s. c. 7 Am. Rep. 176. So far as these cases hold it competent to cut oS a ripa- rian proprietor from access to the navi- gable water, they seem to us to justify an appropriation of his property without compensation; for even those courts which hold the fee in the soil under navi- gable waters to be in the State admit valuable riparian rights in the adjacent proprietor. See Yates v. Milwaukee, 10 Wall. 497 ; Chicago, &o. R. R. Co. v. Stein, 7-5 111. 41. Compare Pennsylvania R. R. Co. b. New York, &o. R. R. Co., 23 N. J. Eq. 157. In the case of Railway Co. V. Renwick, 102 U. S. 180, it is de- cided expressly that the land under the water in front of a riparian proprietor and beyond the line of private ownership, cannot be taken and appropriated to a public purpose without making compen- sation to the riparian proprietor. This is a very sensible and just decision. See in the same line, Langdon v. Mayor, 93 N. Y. 129; Kingslandi). Mayor, 110 N. Y. 569. ^ Murray v. Menefee, 20 Ark. 561. Compare Prosser v. Wapello County, 18 Iowa, 327. ' Hooker v. New Haven & North- ampton Co., 14 Conn. 146 ; Pumpelly v. Green Bay, &c. Co., 18 Wall. 166; Ari- mond V. Green Bay, &c. Co., 31 Wis. 816 ; Ashley v. Port Huron, 86 Mich. 296. The flowing of private lands by the operations of a booming company is a taking of property. Grand Rapids Booming Co. i-. Jarvis, 30 Mich. 308 ; Weaver v. Missis- sippi, &c. Co., 28 Minn. 534. And see cases, p. 669, note 2. The legislature can- not authorize a telegraph company to erect its poles on the lands of a railroad com- pany without compensation. Atlantic, &c. Telegraph Co. v. Chicago, &c. R. R. Co., 6 Biss. 158. The erection of tele- phone, telegraph, and electric wire poles on a highway is a new use of it. Board of Trade Tel. Co. v. Barnett, 107 111. 507 ; Metr. Tel., &e. Co. v. Colwell Lead Co., 67 How. Pr. 365 ; Tifiany v. U. S. Ilium. Co., Id. 73. Contra, Pierce v. Drew, 1-36 Mass. 76 ; Julia B'ld'g Ass. v. Bell Tel. Co., 88 Mo. 258. A statute cannot com- pel a railroad company to allow any one upon payment of one dollar to erect a grain elevator upon its station grounds. State V. Chicago, &c. Ry. Co., 36 Minn. 402. If under an ordinance an abutter on rebuilding is required to put his house back five feet from the street line, prop- erty is taken. In re Chestnut St., 118 Pa. St. 593. So, if under a statute n road ofScer cuts a drain on property to draw surface water from a highway. Ward 1-. Peck, 49 N. J. L. 42. So, it in grading a street an embankment is placed so as to take up part of an abutting lot, and injure a house on it. Vanderlip V. Grand Rapids, 41 N. W. Rep. 677 (Mich.); Broadwell v. Kansas City, 75 Mo. 218. CH. XV.] THE EMINENT DOMAIN. 671 the tide does not ebb and flow is property, and, if taken, must be paid for as such.^ So with an exclusive right of wharfage upon tide water.2 So with the right of the owner of land to use an adjoining street, whether he is owner of the land over which the street is laid out or not.^ So with the right of pasturage in streets, which belongs to the owners of the soil.* So a partial destruction or diminution of value of property by an act of the government which directly and not merely incidentally affects it, is to that extent an appropriation.^ It sometimes becomes important, where a highway has been laid out and opened, to establish a different and higher grade of way upon the same line, with a view to accommodate an increased public demand. The State may be willing to surrender the con- trol of the streets in these cases, and authorize turnpike, plank- road, or railroad corporations to occupy them for their purposes ; and if it shall give such consent, the control, so far as is neces- sary to the purposes of the turnpike, plank-road, or railway, is thereby passed over to the corporation, and their structure in what was before a common highway cannot be regarded as a pub- lic nuisance.* But the municipal organizations in the State have no power to give such consent without express legislative per- mission ; the general control of their streets which is commonly given by municipal charters not being sufficient authority for this 1 Varjck v. Smith, 9 Paige, 547. See the land for other purposes, at the time Tates V. Milwaukee, 10 Wall. 497. the highway was laid out. Griffin v. * Murray v. Sharp, 1 Bosw. 539. Martin, 7 Barb. 297 ; Hardenburgh v. ' Lackland w. North Missouri R. R. Co., Lock wood, 25 Barb. 9. See also Ker- 31 Mo. 180. See supra, p. 669, note 1. whacker v. Cleveland, C. & C. R. R. Co., Abutters, as members of the public who 3 Ohio St. 172, where it was held that by- have not bought by a plat, have no right ancient custom in that State there was a qf action for the obstruction of a street right of pasturage by the public in the under State authority. Gerhard v. See- highways, konk, &c. Com., 15 R. L 334. « See Glover v. Powell, 10 N. J. Eq. * Tonawanda R. R. Co. v. Munger, 5 211 ; Eaton v. Boston, C. & M. R. R. Co., Denio, 255 ; Woodruff v. Neal, 28 Conn. ' 51 N. H. 504. Even a temporary right to 165. In the first case it was held that a the possession of lands cannot be given by-law of a town giving liberty to the by the legislature without provision for inhabitants to depasture their cows in compensation. San Mateo Water Works the public highways under certain regula- v. Sharpstein, 50 Cal. 284. A provision tions, passed under the authority of a in the charter of a corporation that it sliall general statute empowering towns to not be liable for diverting water is void, pass such by-laws, was of no validity, Harding v. Stamford Water Co., 41 Conn, because it appropriated the pasturage, 87. which was private property, to the pub- ^ See Commonwealth v. Erie & N, E. lie use, without making compensation. R. R. Co., 27 Pa. St. 339 ; Tennessee, &c. The contrary has been held in New R. R. Co. v. Adams, 3 Head, 596 ; New York as to all highways laid out while Orleans, &c. R. R. Co. v. New Orleans, 26 Buch a statute was in existence ; the La. Ann. 517 ; Chicago, &c. R. R. Co. r. owner being held to be compensated for Joliet, 79 111. 25 ; Donnaher's Case, 16 the pasturage, as well as for the use of Miss. 649. 672 CONSTITUTIONAL LIMITATIONS. [CH. XV. purpose.^ When, however, the public authorities have thus as- sented, it may be found that the owners of the adjacent lots, who are also owners of the fee in the highway subject . to the public easement, may be unwilling to assent to the change, and may believe their interests to be seriously and injuriously affected thereby. The question may then arise, Is the owner of the land, who has been once compensated for the injury he has sustained in the appropriation of his land as a highway, entitled to a new assessment for any further injury he may sustain in consequence of the street being subjected to a change in the use not contem- plated at the time of the original taking, but nevertheless in furtherance of the same general purpose ? When a common highway is made a turnpike or a plank-road, upon which tolls are collected, there is much reason for holding that the owner of the soil is not entitled to any further compensa- tion. The turnpike or the plank-road is still an avenue for public travel, subject to be used in the same manner as the ordinary highway was before, and, if properly constructed, is generally expected to increase rather than diminish the value of property along its line ; and though the adjoining proprietors are required to pay toll, they are supposed to be, and generally are, fully com- pensated for this burden by the increased excellence of the road, and by their exemption from highway labor upon it.^ But it is 1 Lackland v. North Missouri R. R. Co. level, what gates, fences, and barriers 31 Mo. 180 ; New York & Harlem R. R. shall be made, and what guards shall be Co. V. Mayor, &c. of New York, 1 Hilt, kept to insure safety. Had it been in- 562 ; Milhau v. Sharp, 27 N. Y 611 ; State tended that railroad companies, under a V. Cincinnati, &c. Gas Co., 18 Ohio St. general grant, should hare power to lay 262; State «. Trenton, 36'N. J. 79; Cham- a railroad over a highway longitudi- berlain v. Elizabethport, &c. Co., 41 nally, which ordinarily is not necessary, N. J. Eq. 43 ; Garnett v. Jacksonville, we think that would have been done in &e. Co., 20 Fla. 88&. In Inhabitants of express terms, accompanied with full le- Springfield v. Connecticut River R. R. gislative provisions for maintaining such Co., 4 Cush. 63, it was held that legis- barriers and modes of separation as would lative authority to construct a railroad tend to make the use of the same road, between certain termini, without pre- for both modes of travel, consistent with scribing its precise course and direo- the safety of travellers on both. The tion, would not prima facie confer power absence of any such provision affords to lay out the road on and along an exist- a strong inference that, under general ing public highway. Per Shaw, Ch. J. -. terms, it was not intended that such a " The whole course of legislation on the power should be given." See also Com- subject of railroads is opposed to such a monwealth v. Erie & N. E. R. R. Co., construction. The crossing of public high- 17Pa. St. 339; Attorney-General w. Mor- ways by railroads is obviously necessary, ris & Essex R. R. Co., 19 N. J. Eq. 386. and of course warranted; and numerous 2 See Commonwealth «. Wilkinson, 16 provisions are industriously made to Pick. 175 ; s. o. 24 Am. Dec. 624 ; Bene- regulate such crossings, by determining diet ». Goit, 3 Barb. 459; Wright v. Car- when. they shall be on the same and ter, 27 N. J. 76 ; State v. Laverack, 34 when on different levels, in order to N. J. 201 ; Chagrin Falls & Cleveland avoid collision ; and, when on the sam Plank Road Co. v. Cane, 2 Ohio St. 419 j CH. XV.] THE EMINENT DOMAIN. 673 different when a highway is appropriated for the purposes of a railroad. " It is quite apparent that the use by the public of a highway, and the use thereof by a railroad company, is essentially different. In the one case every person is at liberty to ttavel over the highway in any place or part thereof, but he has no exclusive right of occupation of any part thereof except while he is temporarily passing over it. It would be trespass for him to occupy any part of the highway exclusively for any longer period of time than was necessary for that purpose, and the stoppages incident thereto. But a railroad company takes exclusive and permanent possession of a portion of the street or highway. It lays down its rails upon, or imbeds them in, the soil, and thus appropriates a portion of the street to its exclusive use, and for its own particular mode of conveyance. In the one case, all persons may travel on the street or highway in their own common modes of conveyance. In the other no one can travel on or over the rails laid down, except the railroad company and with their cars specially adapted to the tracks. In one case the use is general and open alike to all. In the other it is peculiar and exclusive. " It is true that the actual use of the street by the railroad may not be so absolute and constant as to exclude the public also from its use. With a single track, and particularly if the cars used upon it were propelled by horse-power, the interruption of the public easement in the street might be very trifling and of no practical consequence to the public at large. But this considera- tion cannot affect the question of right of property, or of the increase of the burden upon the soil. It would present simply a question of degree in respect to the enlargement of the easement, and would not affect the principle, that the use of a street for the purposes of a railroad imposed upon it a new burden." ^ Douglass V. Turnpike Co., 22 Mi 219. ' R. R. Co., 24 N. Y. 655 ; Mahon v. New But see Williams v. Natural Bridge York Central R. R. Co., 24 N. Y. 658 ; Plank Road Co., 21 Mo. 680. A third- Starr v. Camden & Atlantic R. R. Co., class road cannot be changed to one of 24 N. J. 592 ; Donnaher's Case, 16 the second class without compensation. Miss. 649; Theobold o. Louisville, &c. as the burden on the owner is increased. Ry. Co., 66 . Miss. 279 ; Adams v. Bounds V. Kirven, 63 Tex. 159. In Murray Chicago, &o. R. R. Co., 39 Minn. V. County Commissioners of Berkshire, 286 ; Phipps v. West. Md. R. R. Co., 12 Met. 455, it was held that owners of 66 Md. 319 ; Cox v. Louisville, &o. R. , lands adjoining a turnpike were not en- R. Co., 48 Ind. 178. In Inhabitants of titled to compensation when a turnpike Springfield v. Connecticut River R. R. Co., was changed to a common highway. 4 Cush. 71, where, however, the precise 1 Wager v. Troj' Union R. R. Co., 25 question here discussed was not involved, K. Y. 526, 532, approving Williams v. Chief Justice SAnu;, in comparing railroads New York Central R. R. Co., 16 N. Y. with common highways, says : " The two 97; Carpenter v, Oswego & Syracuse uses are almost, if not wholly, inconsistent 43 674 CONSTITUTIONAL LIMITATIONS. [CH. XV. The case from which we here quote is approved in cases in Wisconsin, where importance is attached to the different effect the common highway and the railroad will have upon the value of adjacent property. " The dedication to the public as a high- way," it is said, "enhances the value of the lot, and renders it more convenient and useful to the owner. The use by the rail- road company diminishes its value, and renders it inconvenient and comparatively useless. It would be a most unjust and op- pressive rule which would deny the owner compensation under such circumstances." ^ It is not always the case, however, that the value of a lot of land will be enhanced by the laying out of a common highway across it, or diminished by the construction of a railway over the game line afterwards. The constitutional question cannot depend upon the accidental circumstance that the new road will or will not have an injurious effect ; though that circumstance is prop- erly referred to, since it is difficult to perceive how a change of use which may possibly have an injurious effect not contemplated with each other, so that taking the high- way for a railroad will nearly supersede the former use to which it had been legal- ly appropriated." See also Presbyterian Society of Waterloo v. Auburn & Roch- ester E. R. Co., 3 Hill, 567 ; Craig v. Rochester, &c. R. R. Co.. 39 Barb. 494 ; Sohurmeier v. St. Paul, &c. R. R. Co., 10 Minn. 82 ; Gray v. First Division, &e., 13 Minn. 315 ; Central R. R. Co. v. Hetfield, 29 N. J. 206 ; South Carolina R. R. Co. v. Steiner, 44 (ja. 546. Under the California Constitution the owner of the fee must be compensated. Weyl v. Sonoma R. R. Co., 69 Cal. 202. Compare cases, p. 689, note, post. The cases of Philadelphia & Trenton R. R. Co., 6 Whart. 25 ; s. c. 36 Am. Dec. 202 ; Struthers v. Railroad Co., 87 Pa. St. 282 ; Lexington, &c. R. R. Co. V. Applegate, 8 Dana, 289 ; s. c. 33 Am. Dec. 497; Elizabethtown & P. R. R. Co. V. Thompson, 79 Ky. 52 ; and Morris & Essex R. R. Co. v. Newark, 10 N. J. Eq. 352, are opposed to the New York cases. And see Wolfe v. Covington, &c- R. R. Co., 15 B. Monr. 404 ; Com. v. Erie & N. E. R. R. Co., 27 Pa. St. 839; Snyder u. Pennsylvania R. R. Co., 65 Pa. St. 340; Peddicord v. Baltimore, &c. R. R. Co., 34 Md. 463 ; Houston, &c. R. R. Co. B. Odum, 53 Tex. 343 ; s. c. 2 Am. & Eng. R. R. Cas. 503 ; West Jer- sey R. R. Co. V. Cape May, &c. Co., 34 N. J. Eq. 164 ; Terre Haute & L. R. R. Co. V. Bissell, 108 Ind. 113; Indianapolis, B. & W. Ry. Co. V. Eberle, 110 Ind. 542. A gas-light company cannot be au- thorized to lay its pipes in a country highway without consent of or compen- sation to the owners of the fee. Bloom- fleld, &c. Co. „. Calkins, 62 N. Y. 386. Nor may a pipe line for natural gas be laii]. Sterling's Appeal, 111 Pa. St. 35. 1 Ford V. Chicago & Northwestern E. R. Co., 14 Wis. 609, 616 ; followed in Pomeroy v. Chicago & M. R. R. Co., 16 Wis. 640. The later cases allow compen- sation only when the fee of the street is in the owner and there is an actual phy- sical interference with the property in the strict tense: Heiss v. Milwaukee, &c. E. R. Co., 69 Wis. 655; Hanlin v. Chicago, &c. Ry. Co., 61 Wis. 515 ; wliere there was no such interference, distinguishing Buchner o. Chicago, &c. R. R. Co., 56 Wis. 403; 60 Wis. 264, where part of the property was actually taken. In many of the cases noted in the preceding note the right to compensation is based upon the ownership of the fee. In Pennsyl- , vania it is held competent for the legisla- ture, though not necessary, to provide compensation to land-owners when a highway is taken for a railroad. Mifflin V. Railroad Co., 16 Fa. St. 182. CH. XV.] THE EMINENT DOMAIN. 675 in the original appropriation can be considered anything else than the imposition of a new burden upon the owner's estate. In Connecticut, where the authority of the legislature to authorize a railroad to be constructed in a common highway without com- pensation to land-owners is also denied, importance is attached to the terms of the statute under which the original appropriation was made, and which are regarded as permitting the taking for the purposes of a common highway, and for no other. The reasoning of the court appears to us sound ; and it is applicable to the statutes of the States generally,^ 1 Imlay v. Union Branch R. B. Co., 26 Conn. 249, 255. "When land is con- demned for a special purpose," say the court, " on the score of public utility, the sequestration is limited to that particular use. Land taken for a highway is not thereby convertible into a common. As the property is not taken, but the use only, the right of the public is limited to the use, the specific use, for which the proprietor has been devested of a com- plete dominion over his own estate. Tliese are propositions which are no longer open to discussion. But it is contended that land once taken and still held for high- way purposes may be used for a railway without exceeding the limits of the ease- ment already acquired by the public. If this is true, if the new use of the land is within the scope of the original seques- tration or dedication, it would follow that the railway privileges are not an encroach- ment on the estate remaining in the owner of the soil, and that the new mode of en- joying the public easement will not ena- ble him rightfully to assert a claim to damages therefor. On the contrary, if the true intent and efficacy of the original condemnation was not to subject the land to such a burden as will be imposed upon it when it is confiscated to the uses and control of a railroad corporation, it can- not be denied that in the latter case the estate of the owner of the soil is injuri- ously affected by the supervening servi- tude; that his rights are abridged, and tha( in a legal sense his land is again taken for public uses. Thus it appears that the court have simply to decide whether there is such an identity between a highway and a railway, that statutes conferring a right to establish the former include an authority to construct the latter. "The term 'public highway,' as em- ployed in such of our statutes as convey the right of eminent domain, has cer- tainly a limited import. Although, as suggested at the bar, a navigable river or a canal is, in some sense, a public high- way, yet an easement assumed under the name of a highway would not enable the public to convert a street into a canal. The highway, in the true meaning of the word, would be destroyed. But as no such destruction of the highway is ne- cessarily involved in the location of a railway track upon it, we are pressed to establish the legal proposition that a high- way, such as is referred to in these stat- utes, means or at least comprehends a railroad. Such a construction is possible only when it is made to appear that there is a substantial practical or technical iden- tity between the uses of land for highway and for railway purposes. "No one can fail to see that the terms ' railway ' and ' highway ' are not conver- tible, or that the two uses, practically con- sidered, although analogous, are not iden- tical. Land as ordinarily appropriated by a railroad company is inconvenient, and even impassable, to those who would use it as a common highway. Such a corporation does not hold itself bound to make or to keep its embankments and bridges in a condition which will facili- tate the transitus of such vehicles as ply over an ordinary road. A practical dis- similarity obviously exists between a rail- way and a common highway, and is recognized as the basis of a legal distinc- tion between them. It is so recognized on a large scale when railway privileges are sought from legislative bodies, and granted by them. If the terms ' high- way ' and ' railway ' are synonymous, or if one of them includes the other by legal 676 CONSTITUTIONAL LIMITATIONS. [CH. XV. It would appear from the cases cited that the weight of judicial authority is against the power of the legislature to appropriate implication, no act could be more super- fluouB than to require or to grant author- ity to construct railways over localities already occupied as highways. "If a legal identity does not subsist between a highway and a railway, it is illogical to argue that, because a railway may be so constructed as not to interfere with the ordinary uses of a highway, and so as to be consistent with the highway right already existing, therefore such a new use is included within the old use. It might as well be urged, that if a com- mon, or a canal, laid out over the route of a public road, could be so arranged as to leave an ample roadway for vehicles and passengers on foot, the land should be held to be originally condemned for a canal or a common, as properly incident to the highway use. " There is an im'J)ortant practical rear son why courts should be slow to recog- nize a legal identity between the two uses referred to. They are by no means the same thing to the proprietor whose land is taken ; on the contrary, they suggest widely different standards of compensa- tion. One can readily conceive of cases where the value of real estate would be directly enhanced by tlie opening of a highway tlirough it; while its confisca- tion for a railway at the same or a subse- quent time would be a gross injury to the estate, and a total subversion of the mode of enjoyment expected by the owner when he yielded his private rights to the public exigency. "But essential distinctions also exist between highway and railway powers, as conferred by statute, — distinctions which are founded in the very nature of the powers themselves. In the case of the highway, the statute provides that, after the observance Of certain legal forms, the locality in question shall be forever sub- servient to the right of every individual in the community to pass over the thor- oughfare so created at all times. This right involves the important implication that he sliall so use the privilege as to leave the privilege of all others as unob- structed as his own ; and that he is there- fore to use the road in the manner in which such roads are ordinarily used, with such vehicles as will not obstruct, or re- quire the destruction of the ordinary modes of travel thereon. He is not au- thorized to lay down a railway track, and run his own locomotive and car upon it. No one ever thought of regarding high- way acts as conferring railway privileges. Involving a right in every individual, not only to break up ordinary travel, but also to exact tolls from the public for the priv- ilege of using the peculiar conveyances adapted to a railroad. If a right of this description is not conferred when a high- way is authorized by law, it is idle to pre- tend that any proprietor is divested of such a right. It would seem that, under such circumstances, the true construction of highway laws could hardly be debata- ble, and that the absence of legal identity between the two uses of which we speak was patent and entire. "Again, no argument or illustration can strengthen the self-evident proposi- tion that, when a railway is authorized over a public highway, a right is created against the proprietor of the fee, in favor of a person, an artificial person, to whom he before bore no legal relation whatever. It is understood that when such an ease- ment is sought or bestowed, a new and independent right will accrue to the rail- road corporation as against the owner of the soil, and that, without any reference to the existence of the highway, his land will forever stand charged with the ac- cruing servitude. Accordingly, if sucli a highway were to be discontinued accord- ing to the legal forms prescribed for that purpose, the railroad corporation would still insist upon the express and indepen- dent grant of an easement to itself, ena- bling it to maintain its own road on the site of the abandoned liighway. We are of opinion, therefore, as was distinctly intimated by this court in a former case (see opinion of Hinman, J., in Nicholson V. N. Y. & N. H. K. E. Co., 22 Conn. 74, 85), that to subject the owner of the soil of a highway to a further appropriation of his land to railway uses is the imposi- tion of a new servitude upon his estate, and is an act demanding the compensa- tion which the law awards wlien land is taken for public purposes." And see South Carolina E. B. Co. v. Steiner, 44 Ga. 646. CH. XV.] THE EMINENT DOMAIN. 677 a common highway to the purposes of a railroad, unless at the same time provision is made for compensation to the owners of the fee. These cases, however, have had reference to the common railroad operated by steam. In one of the New York cases ' it is intimated, and in another case in the same State it was directly decided, that the ruling should be the same in the case of the street railway operated by horse power.^ There is generally, however, a very great difference in the two cases, and some of the considerations to which the courts iave attached importance could have no application in many cases of common horse rail- ways. A horse railway, as a general thing, will interfere very little with the ordinary use of the way by the public, even upon the very line of the road ; and in many cases it would be a relief to an overburdened way, rather than an impediment to the pre- vious use. In Connecticut, after il had been decided, as above shown, that the owner of the fee subject to a perpetual highway was entitled to compensation when the highway was appropriated for an ordinary railroad, it was also held that the authority to lay and use a horse-railway track in a public street was not a new servitude imposed upon the land, for which the owner of the fee would be entitled to damages, but that it was a part of the public use to which the land was originally subjected when taken for a street.^ The same distinction between horse railways and those operated by steam is also taken in recent New York cases.* But whether the mere difference in the motive power will make differeiit principles applicable is a question which the courts will probably have occasion to consider further. Conceding that the interests of individual owners will not generally suffer, or their use of the highway be incommoded by the laying down and use of the track of a horse railway upon it, there are nevertheless, cases where it might seriously impede, if not altogether exclude, the general travel and use by the, ordinary modes, and very greatly reduce the value of all the property along the line. Suppose, for instance, a narrow street in a city, occupied altogether by whole- sale houses, which require constantly the use of the whole street 1 Wager v. Troy Union R. E. Co., 25 is not an additional servitude. Hodges N. Y. 526. "■ Bait. Pass. Ry. Co., 68 Md. 603 ; Texas s Craig v. Rochester City & Brighton & P. Ry. Co. v. Rosedale St. Ry. Co., 64 R. R. Co., 39 Barb. 449. Tex. 80 ; Randall v. Jacksonville, &c. Co., 8 Elliott V. Fair Haven & Westville 19 Fla. 409 ; Eichels v. Evansville St. Ry. R. R. Co., 32 Conn. 579, 586. Co., 78 Ind. 261 ; and this though the * Brooklyn Central, &c., R. R. Co. v. company is authorized to use steam as a Brooklyn City R. R. Co., 33 Barb. 420 ; motor. Brlggs v. Lewiston, &c. Co., 79 People V. Kerr, 37 Barb. 357; s. c. 27 Me. 363. See Campbell «. Mettop. St. Ry. N.Y. 188. See Kellinger u. Raih-oad Co., Ca, 9 S. E. Rep. 1078,(Ga..). 60 N. Y. 206. A horse railroad in a street 678 CONSTITUTIONAL LIMITATIONS. [CH. XV. in connection with their business, and suppose this to be turned over to a street-railway company, whose line is such as to make the road a principal avenue of travel, and to require such constant passage of cars as to drive all drayage from the street. The corporation, under these circumstances, will substantially have a monopoly in the use of the street ; their vehicles will drive the business from it, and the business property will become compara- tively worthless. And if property owners are without remedy in such case, it is certainly a very great hardship upon them, and a very striking and forcible instance and illustration of damage without legal injury. When property is appropriated for a public way, and the pro- prietor is paid for the public easement, the compensation is gen-, erally estimated, in practice, at the value of the land itself.^ If, therefore, no other circumstances were to be taken into the account in these cases, the owner, who has been paid the value of his land, could not reasonably complain of any use to which it might afterwards be put by the public. But, as was pointed out in the Connecticut case,* the compensation is always liable either to exceed or to fall below the value of the land taken, in conse- quence of incidental injuries or benefits to the owner as proprietor of the land which remains. These injuries or benefits will be estimated with reference to the identical use to which the prop- erty is appropriated; and if it is afterwards put to another use, which causes greater incidental injury, and the owner is not allowed further compensation, it is very evident that he has suffered by the change a wrong which could not have been fore- seen and provided against. And if, on the other hand, he is entitled in any case to an assessment of damages, in consequence of such an appropriation of the street affecting his rights in- juriously, then he must be entitled to such an assessment in every case, and the question involved will be, not as to the right, but only of the quantum of damages. The horse railway either is or is not the imposition of a new burden upon the estate. If it is not, the owner of the fee is entitled to compensation in no case ; if it is, he is entitled to have an assessment of damages in every case. In New York, where, by law, when a public street is laid out or dedicated, the fee in the soil becomes vested in the city, it has been held that the legislature might authorize the construction of a horse railway in a street, and that neither the city nor the owners of lots were entitled to compensation, notwithstanding it 1 Murray v. County Commissioners, 12 ^ Imlay v. Union Brancli R. R. Co., 26 Met 455, per Shaw, Ch. J. Conn. 249. CH. XV.] THE EMINENT DOMAIN. 679 ■was found as a fact that the lot-owners would suffer injury from the construction of the road. The city was not entitled, because, though it held the fee, it held it in trust for the use of all the people of the State, and not as corporate or municipal property ; and the land having been originally acquired under the right of eminent domain, and the trust being publiei Juris, it was under the unqualified control of the legislature, and any appropriation of it to public use by legislative authority could not be regarded as an appropriation of the private property of the city. And so far as the adjacent lot-owners were concerned, their interest in the streets, distinct from that of other citizens, was only as hav- ing a possibility of reverter after the public use of the land should cease ; and the value of this, if anything, was inappreciable, and could not entitle them to compensation,^ So in Indiana, in cases where the title in fee to streets in cities and villages is vested in the public, it is held that the adjacent land-owners are not entitled to the statutory remedy for an assessment of damages in consequence of the street being appro- priated to the use of a railroad ; and this without regard to the motive power by which the road is operated. At the same time it is also held that the lot-owners may maintain an action at law if, in consequence of the railroad, they are cut off from the ordinary use of the street.^ In Iowa it is held that where the 1 People V. Kerr, 37 Barb. 357 ; s. c. 27 N. Y. 188. The same ruling as to the right of the city to compensation was had in Savannah, &c. B. B. Co. v. Mayor, &c. of Savannah, 45 Ga. 602. And see Brook- lyn Central, &c. R. B. Co. v. Brooklyn City B. B. Co., 38 Barb. 420; Brooklyn & Newtown B. B. Co. v. Coney Island B. B. Co., 35 Barb. 864 ; People v. Kerr, 87 Barb. 357; Chapman v. Albany & Schenectady R. E. Co., 10 Barb. 36Q. And as to the title reverting to the ori- ginal owner, compare Water Works Co. V. Burkhart, 41 Ind. 364; Gebhardt v. Beeves, 75111. 301; Heard v. Brooklyn, 60 N. Y. 242. Although, in the case of People V. Kerr, the several judges seem generally to have agreed on the principle as stated in the text, it is not very clear how much importance was attached to the fact that the fee to the street was in the city, nor that the decision would have been different if that had not been the case. Where land has been dedicated to a city as a levee, the legislature may authorize its use by a railroad without compensa- tion ta the city, but the one who has ded- icated it must be compensated for the in- jury to his ultimate fee. Portland & W. V. B. B. Co. V. Portland, 14 Oreg. 188. ^ Protzman v. Indianapolis & Cincin- nati B. B. Co., 9 Ind. 467; New Al- bany & Salem K. B. Co. .;. O'Daily, 18 Ind. 363 ; Same u. Same, 12 Ind. 551. Unless the railroad causes a physical dis- turbance of a right, as where the abutter owns the fee of the street or where his access is cut (^, he is not entitled to com- pensation. Dwenger v. Chicago, &c. By. Co., 98 Ind. 153; Terre Haute & L. B. B. Co. V. Bissell, 108 Ind. 113; In- dianapolis, B. & W. By. Co. V. Eberle, 110 Ind. 642. See also Street Bailway v. Cumminsville, 14 Ohio St. 523 ; State v. Cincinnati Gas, &c. Co., 18 Ohio St. 262. In Nebraska although the fee is in the city, the right of access, which is proper- ty, may not be cut off without compensa- tion. Burlington & M. B. B. B. Co. v. Beinhackle, 15 Neb. 279 ; Omaha V. E. B. Co. ■/. Bogers, 16 Neb. 117. If egress and ingress are not disturbed, no action lies in such case in Tennessee. Iron Mt. B. R. Co. V. Bingham, 11 S. W. Rep. 70& 680 CONSTITUTIONAL LIMITATIONS. [CH. XV. title to city streets is in the cprporation in trust for tlie public, the legislature may authorize '. Soden, 25 Kan. 588; s. c. 37 Am. Rep. 265. CH. XV.] THE EMINENT DOMAIN. 687 mechanical power, or for any of the other purposes for which they can make it available, without depriving those below them of the like use, or encroaching upon the rights of those above; and this property is equally protected with any of a more tangible character.' What Interest in Land can he taken under the Right of Eminent Domain. Where land is appropriated to the public use under the right of eminent domain, and against the will of the owner, we have seen how careful the law is to limit the public authorities to their precise needs, and not to allow the dispossession of the owner from any portion o^ his freehold which the public use does not require. This must be so on the gfineral principle that the right, being based on necessity, cannot be any broader than the neces- sity which supports it. For the same reason, it would seem that, in respect to the land actually taken, if there can be any conjoint occupation of the owner and the public, the former should not be altogether excluded, but should be allowed to occupy for his private purposes to any extent not inconsistent with the public use. As a general rule, the laws for the exercise of the right of eminent domain do not assume to go further than to appropriate the use, and the title in fee still remains in the original owner. In the common highways, the public have a perpetual easement, but the soil is the property of the adjacent owner, and he may make any use of it which does not interfere with the public right of passage, and the public can use it only for the purposes usual with such ways.^ And when the land ceases to be used by the public as a way, the owner will again become restored to his complete and exclusive possession, and the fee will cease to be encumbered with the easement.® ' 1 Morgan v. King, 18 Barb. 284 ; s. c. standing on land which has been con- 35 N. Y. 454 ; Gardner v. Newburg, 2 demned for right of way belongs to the Johns. Ch. 162 ; s. c. 7 Am. Dee. 526 ; Em- land-owner. Bailey v. Sweeney, 64 N. poria V. Soden, 25 Kan. 588 ; s. c. 37 Am. H. 296. So of ice. Julien v. Woodsmall, Rep. 265. 82 Ind. 568. Where in the course of a " In Adams v. Rivers, 11 Barb. 390, a sewer improvement the fee of an island person who stood in the public way and is not taken, the gravel taken from it abused the occupant of an adjoining lot mny be used elsewhere in the sewer was held liable in trespass as being un- work. Titus v. Boston, 149 Mass. 164. lawfully there, because not using the * Dean «. Sullivan R. R. Co., 22 N. H. highway for the purpose to which it was 816 ; Blake v. Rich, 34 N. H. 282 ; Henry appropriated. See, as to what is a proper v. Dubuque & Pacific R. R. Co., 2 Iowa, nseot highway by land. Bliss v. South 288; Weston u. Foster, 7 Met. 297; Hadley, 145 Mass. 91 ; Gulline v. Lowell, Quimby v. Vermont Central R. R. Co., 23 144 Mass. 491 ; by water. Sterling r. Jack- Vt. 887 ; Giesy v. Cincinnati, &c. R. R. son, 37 N. W. Rep. 845 (Mich.). Hay Co., 4 Ohio St. 308. See Skillman v. 688 CONSTITUTIONAL LIMITATIONS. [CH. XV. It seems, however, to be competent foi* the State to appropriate the title to the land in fee, and so to altogether exclude any use by the former owner, except that which every individual citizen is entitled to make, if in the opinion of the legislature it is need- ful that the fee be taken.^ The judicial decisions to this effect proceed upon the idea that, in some cases, the public purposes cannot be fully accomplished without appropriating the complete title ; and where this is so in the opinion of the legislature, the same reasons which support the legislature in their right to de- cide absolutely and finally upon the necessity of the taking will also support their decision as to the estate to be taken. The power, it is said in one case, " must of necessity rest in the legis- lature, in order to secure the useful exercis^ and enjoyment of the right in question. A case might arise where a temporary use would be all that the public interest required. Another case might require the permanent and apparently the perpetual occu- pation and enjoyment of the property by the public, and the right to take it must be coextensive with the necessity of the case, and the measure of compensation should of course be graduated by the nature and the duration of the estate or interest of which the owner is deprived." ^ And it was therefore held, where the statute provided that lands might be compulsorily taken in fee- simple for the purposes of an almshouse extension, and they were taken accordingly, that the title of the original owner was thereby entirely devested, so that when the land ceased to be used for the public purpose, the title remained in the municipality which had appropriated it, and did not revert to the former owner or his heirs.* And it does not seem to be uncommon to provide that, in the case of some classes of public ways, and especially of city and village streets, the dedication or appropriation to the public Chicago, &0. Ry. Co. 43 N. W. Rep. 275 Com'rs v. Armstrong, 2 Lans. 429 ; s. c. (Iowa) ; ante, p. 679, note 1. on appeal, 45 N. Y. 234 ; and 6 Am: , 1 Roanoke City t'. Berkowitz, 80 Va. Rep. 70. 616. See Matter of Amsterdam Water 3 Heyward c. Mayor, &c. of New Commissioners, 96 N. Y. 351. This, how- York, 7 N. Y. 314. And see Baker o. ever, is forbidden by the Constitution of Johnson, 2 Hill, 842 ; Wheeler v. Hoohes- lllinois of 1870, in the case of land taken ter, &c. R. R. Co., 12 Barb. 227 ; Hunger for railroad tracks. Art. 2. § 13. And v. Tonawanda R. R. Co., 4 N. Y. 349 j we think it would be difficult to demon- Rexford i-. Knight, 11 N. Y. 308; Com- Btrate the necessity for appropriating the mon wealth v. Fisher, 1 Pen. & Watts, 462 ; fee in case of any thoroughfare : and if De Varaigne v. Fox, 2 Blatch. 95 ; Coster never needful, it ought to be held incora- v. N. J. R. R. Co., 23 N. J. 227 ; Plitt v. petent. See New Orleans, &c. R. R. Co. Cox, 43 Pa. St. 486 ; Brooklyn Park V. Gay, 32 La. Ann. 471. Cnm'rs v. Armstrong, 45 N. Y. 234 ; s. o. 2 Heywardi'. Mayor, &o. of New York, 6 Am. Rep. 70; Water Works Co. v. 7 N. Y. 314, 325. See also Dingley v. Burkhart, 41 Ind. 364. Compare Geb- • Boston, 100 Mass. 544 ; Brooklyn Park hardt v. Reeves, 75 111. 301. GH. XV.] THE EMINENT DOMAIir. 689 use shall vest the title to the land in the State, county, or city ; the purposes for which the land may be required by the public being so numerous and varied, and so impossible of complete specification in advance, that nothing short of a complete owner* ship in the public is deemed sufficient to provide for them. In any case, however, an easement only would be taken, unless the statute plainly contemplated and provided for the appropriation of a larger interest.^ The Damaging of Property. In addition to providing for compensation for the taking of property for public use, several States since 1869 have embodied in their constitutions provisions that property shall not be " damaged " or " injured " in the course of public improvements without compensation.^ The construction of these provisions has not been uniform. In some cases they are held to require compensation only where like acts done by an individual would warrant the recovery of damages at common la\f .^ In others a broader scope has been given to them.* Compensation has been • Barclay ». Howell'e Lessee, 6 Pet. 498 ; Rust v- Lowe, 6 Mass. 90 ; Jackson v. Rutland & B. R. R. Co>, 25 Vt. 160 j Jackson v, Hathaway, 16 Johns. 447. ^ Constitution of Alabama, Art. XIIL, § 7 ; Arkansas, Art> II. § 22 ; California, Art. I. § 14 ; Colorado, Art. IL § 14 ; Georgia, Bill of Rights, I. § 3 ; Illinois, Art. II. § 13 ; Louisiana, Art. 166 ; Mis- souri, Art. I. § 20; Nebraska, Art. I. § 21 ; Pennsylvania, Art. L § 8; Texas, Art. L § 17 ; West Virginia, Art. 111. §9- ^ The purpose was to impose on cor- porations " hSTing the right of eminent domain a liability for consequential dam> ages from which they had been preyiously exempt," when for doing the same act an individual would have been liable- Edmundson v. Pittsburgh, &c. R. R. Co., Ill Pa. St 316. " Injured " means such legal wrong as would have been the sub- ject of an action for damages at common law. Pennsylvania R. R. Co. ». Marchant, 119 Pa. St. 541 ; Pa. S. V. R. R. Co. v. Walsh, 124 Pa. St. 544. " In all cases, to warrant a recovery it must appear that there has been some direct physical dis- turbance of a right, either public or pri- vate, which the plaintiff enjoys in connec- tion with his property and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his prop- erty in excess of that sustained by the public generally. In the absence of any statutory or constitutional provisions on the subject, the common law afforded re- dress in all such cases, and w« have no doubt it was the intention of the framers of the present constitution to require com- pensation to be made in all cases where but for some legislative enactment an ac- tion would lie at the common law." Mulkey, J., in Rigney ». Chicago, 102 111. 64 ; followed in Chicago v. Taylor, 125 U. S. 161; Rude v. St. Louis, 93 Mo. 408. To the same effect is Trinity & S. Ry. Co. V. Meadows, 11 S. W. Rep. 145 (Tex.). In Alabama the provision in case of a change of grade is held to cover only such alterations as could not have been anticipated at the time of the first taking. City Council of Montgomery v. Townsend, 80 Ala. 489. The English statute covering the same ground as these provisions receives substantially the same construction as that put upon them in the Pennsylvania cases noted above. Cal- edonian Ry. Co. V. Walker's Trustees, L. R. 7 App. Cas. 259. * The word "damaged" embraces more than physical invasions of prop- erty. It is not restricted to cases where 44 690 CONSTITUTIONAL LIMITATIONS. [CH. XV. awarded under them for the laying of a railroad track in the street, the fee of which the abutter does not own ; ^ for a change in the grade of the street ; ^ for cutting off egress by it ; ^ and for other damage from the construction of public works.* It has been denied, however, where a railway viaduct has been built on the other side of a narrow street from the plaintiff's lot,^ and where the street has been rendered impassable at some distance from the property of the complaining party,* and where the damage results from the operation and not the construction of the work,^ the owner is entitled to recover as for a tort at common law. Keardon v. San Francisco, 66 Cal. 492. The language is intended to cover "all cases in which even in the proper prosecution of a pub- lic work or purpose the right or property of any person in a pecuniary way may be injuriously affected," Gulf C. & S. F. By. Co. V. Fuller, 63 Tex. 467. See Gotts- chalk V. Chicago, &c. H. B. Co., 14 Neb. 660; Hot Springs B. B. Co. v. William- son, 45 Ark. 429 ; Atlanta v. Green, 67 Ga. 386; Denver v. Bayer, 7 Col. 113; Denver Circle B. E. Co. v. Nestor, 10 Col. 403. The d.imageB are not restricted to such as could reasonably have been an- ticipated when the structure was built. Omaha & B. V. B. B. Co. ti. Standen, 22 Neb. 343. 1 Hot Springs E. B. Co. v. Williamson, 45 Ark. 429 ; Columbus & W. By. Co. v. Witherow, 82 Ala. 190 ; Denver ». Bayer, 7 Col. 113 ; Denver & E. G. By. Co. v. Bourne, 11 Col. 59; McMahon a. St. Louis, &c. By. Co., 6 Sou. Bep. 640 (La.) ; Gulf C. & S. F. By Co. ». Fuller, 63 Tex. 467 ; Gottschalk v. Chicago, &c. E. B. Co., 14 Neb. 560. So of a street railroad. Campbell v. Metrop. St. By. Co., 9 S. E. Bep. 1078 (Ga.). In Illinois it is so held as to a track in a road : Chi- cago & W. I. B. E. Co. V. Ayres, 106 III. 611 ; but not as to one laid in the street of a city by its permission under legisla- tive authority. Olney v. Wharf, 115 111. 519. Nor can a railroad which crosses a street complain -that another crosses it In the street Kansas City, St. J., &c. B. B. Co. 0. St. Joseph, &c. Co., 97 Mo. 457. " Beardon v. San Francisco, 66 Cal. 492; Atlanta v. Green, 67 Ga. 386 ; Moon ». Atlanta, 70 Ga. 611 ; Sheehy v. Kansas City, &c. Co., 94 Mo. 674 ; New Brighton e. Peirsol, 107 Pa. St. 280; Hutchinson v. Parkersburg, 25 W. Va. 226. So as to the establishment of the grade. Harmon v. Omaha, 17 Neb. 548. But if after a grade is established One buys and the walk is then cut down to grade, there is no dam- age. Denver v. Vernia, 8 Col. 399. In Alabama there is none, if the change migli't have been anticipated. City Council of Montgomery v. Townsend, 80 Ala. 489. » Eigney v. Chicago, 102 111. 64 ; Chi- cago V. Taylor, 126 U. S. 161 ; Chicago, K. & N. By. Co. V. Hazels, 42 N. W. Bep. 93 (Neb.). So if access is rendered dan- gerous where not cut off. Pa. S. V. B. B. Co. V. Walsh, 124 Pa. St. 644. See also Quigley v. Pa. S. V. B. B. Co., 121 Pa. St. 35. * In Omaha Horse By. Co. v. Cable Tramway Co., 32 Fed. Bep. 727, the laying of a cable road by the side of a horse railroad was held a damaging. So of the erection of a bridge near a ferry. Mason o. Harper's Ferry B. Co., 17 W. Va. 396. But the dogging of a stream caused by the removal of timber incidental to proper railroad construction is not a ground for damages. Trinity & S. B. By. Co. V. Meadows, 11 S. W. Bep. 146 (Tex.). ' Pennsylvania B. B. Co. v. Lippin- cott, 116 Pa. St. 472 ; Pennsylvania B. B. Co. V. Marchant, 119 Pa. St. 541. 8 Bude V. St. Louis, 93 Mo. 408 ; Fair- child V. St Louis, 11 S. W. Bep. 60 (Mo.) ; East St. Louis v. O'Flynn, 119 111. 200. ' Pennsylvania B. E. Co. v. Marchant, 119 Pa. St. 641. See Caledonian By. Co. V. Walker's Trustees, L. E. 7 App. Cas. 269. Nor may damages be given for neg- ligence in the construction. Edmundson V. Pittsburgh, &c. B E. Co., Ill Pa. St 316 ; Atlanta v. Word, 78 Ga. 276. Contra, Omaha & B. V. E. B. Co. v. Standen, 22 Neb. 343. CH. XV;] THE EMINENT DOMA-IN. 691 Compensation for Property Taken. It is a primary requisite, in the appropriation of lands for pub- lic purposes, that compensation shall be made therefor. Eminent domain differs from taxation in that, in the former case, the citi- zen is compelled to surrender to the public something beyond his due proportion for the public benefit. The public seize and ap- propriate his particular estate, because of a special need for it, and not because it is right, as between him and the government, that he should surrender it.^ To him, therefore, the benefit and protection he receives from the government are not sufficient compensation; for those advantages are the equivalent for the taxes he pays, and the other public burdens he assumes in common with the community at large. And this compensation must be pecimiary in its character, because it is in the nature of a" payment for a compulsory purchase.^ The time when the compensation must be made may depend upon the peculiar constitutional provisions of the State. In some of the States, by express constitutional direction, compensation must be made before the property is taken. No constitutional principle, however, is violated by a statute which allows private property to be entered upon and temporarily occupied for the purpose of a survey and other incipient proceedings, with a view to judging and determining whether or not the public needs re- quire the appropriation, and, if they do, what the proper location shall be; and the party acting under this statutory authority would neither be bound to make compensation for the temporary possession, nor be liable to action of trespass.^ When, however, the land has been viewed, and a determination arrived at to ap- propriate it, the question of compensation is to be considered ; and in the absence of any express constitutional provision fixing the time and the manner of making it, the question who is to take the 1 People V. Mayor, &o. of Brooklyn, 4 &o. E. R. Co., 1 Minn. 127 ; Railroad Co. N. Y. 419; Wo'odbridge v. Detroit, 8 u. Ferris, 26 Tex. 588; Curranw. Shattuck, Mich. 274 ; Booth ». Woodbury, 32 Conn. 24 Cal. 427 ; State v. Graves, 19 Md. 351 ; 118. Weckler w. Chicago, 61 111. 142, 147. The 2 The effect of the right of eminent power of a treaty is such that it may take domain against the individual " amounts private property without compensation, to nothing more than a power to oblige Cornet v. Winton, 2 Yerg. 143. him to sell and convey when the public * Bloodgood a. Mohawk & Hudson R. necessities require it." Johnson, J., in R. Co., 14 Wend. 51, and 18 Wend. 9; Fletcher v. Peck, 6 Cranch, 87, 145. And Cushman v. Smith, 84 Me. 247 ; Nichols see Bradshaw v. Rogers, 20 Johns. 103, ». Somerset, &c. R. R. Co. 43 Me. 356 ; per Spencer, Ch. J ; People v. Mayor, &c. Mercer v. Mc Williams, Wright (Ohio), of Brooklyn, 4 N. Y. 419 ; Carson w. Cole- 132; Walther v. Warner, 25 Mo. 277; man, 11 N. J. Eq. 106 ; Young v. Harrison, Fox v. W. P. R. R. Co., 31 Cal. 538 ; State 6 Ga. 130; United States v. Minnesota, v. Seymour, 35 N. J. 47, 53. 692 CONSTITUTIONAL LIMITATIONS. [CH. XV. property — whether the State, or one of its political divisions or municipalities, or, on the other hand, some private corporation — may be an important consideration. When the property is taken directly by the State, or by any municipal corporation by State authority, it has been repeatedly held not to be essential to the validity of a law for the exercise of the right of eminent domain, that it should provide for making compensation before the actual appropriation. It is sufficient if provision is made by the law by which the party can obtain com- pensation, and that an impartial tribunal is provided for assess- ing it.i The decisions upon this point assume that, when the State has provided a remedy by resort to which the party can have his compensation assessed, adequate means are afforded for its satisfaction ; since the property of the municipality, or of the State, is a fund to which he can resort without risk of loss.^ It 1 Bloodgood V. Mohawk & Hudson R. E. Co, 18 Wend. 9 ; Rogers », Brad- ghaw, 20 Johns. 744 ; Calking v. Baldwin, 4 Wend. 667; s. c. 21 Am. Dec. 168; Case 0. Thompson, 6 Wend. 634 ; Fletcher V. Auburn & Syracuse R. R. Co., 25 Wend. 462; Rexford v. Knight, 11 N. Y. 308; Taylor ». Marcy, 25 111. 518; CaUi- son V. Hedrick, 16 Gratt. 244 ; Jackson v. Winn's Heirs, 4 Lit. 323 ; People v Green, 3 Mich. 496 ; Lyon v. Jerome, 26 Wend. 485, 497, per Yerplctnck, Senator; Gard- ner V. Newburg, 2 Johns. Ch. 162 ; g. c. 7 Am. Dec. 526; Charlestown Branch R. R. Co. V. Middlesex, 7 Met. 78 ; Har- per ». Richardson, 22 Cat. 251 ; Baker v. Johnson, 2 Hill, 342 ; People v. Hayden, 6 Hill, 859; Orr v. Quimby, 54 N. H. 590 ; Ash V. Cummings, 50 N. H. 591 ; White V. Nashville, &c. R. R. Co., 7 Heisk. 518 ; Simms v. Railroad Co., 12 Heisk. 621; State V. Messenger, 27 Minn. 119 ; Chap- man V. Gates, 54 N. Y. 1.32 ; Hamersley e. New York, 56 N. Y. 533 ; Loweree ». Newark, 38 N. J. 151 ; Brock v. Hishen, 40 Wis. 674; Long v. Fuller, 68 Pa. St. 170 (case of a school district) ; Smeaton V. Martin, 57 Wis. 364 ; Com'rs of State Park V. Henry, 38 Minn. 266 ; State v. District Court, 44 N. W. Rep. 59 (Minn.), The same rule applies to the United States. Great Palls M'f g Co. ». Garland, 25 Fed. Rep. 521. " Although it may not be necessary, within the constitutional provision, that the amount of compensa- tion should be actually ascertained and paid before property is thus taken, it is, 1 apprehend, the settled doctrine, even as respects the State itself, that at least certain and ample provision must first be made by law (except in cases of public emergency), so that the owner can coerce payment through the judicial tribunals or otherwise, without any unreasonable or unnecessary delay ; otherwise the law making the appropriation is no better than blank paper. Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9. The provisions of the statute prescribing the mode of compensation in cases like the present, when properly understood and administered, come fully up to this great fundamental principle ; and even if any doubt could be entertained about their true construction, it should be made to lean in favor of the one that is found to be most in conformity with the constitu- tional requisite." People v. Hayden, 6 Hill, 359, 361. "A provision for com- pensation is an indispensable attendant upon the due and constitutional exercise of the power of depriving an individual of his property." Gardner v. Newburg, 2 Johns. Ch. 162, 168; s. c. 7 Am. Dec. 526 ; Buffalo, &c. R. R. Co. «. Ferris, 26 Tex. 588 ; Ash v. Cummings, 50 N. H. 591, 613 ; Haverhill Bridge Proprietors v. County Com'rs, 108 Mass. 120; s. c. 4 Am. Rep. 518; Langford v. Com'rs of Ramsay Co., 16 Minn. 875; Southwestern R. R. Co. V. Telegraph Co., 46 Ga. 48. ' In Commissioners, &c. v. Bowie, 34 Ala. 461, it was held that a provision by law that compensation, when assessed. CH. XV.] THE EMINENT DOMAIN. 693 is essential, however, that the remedy be one to which the party can resort on his own motion ; if the provision be such that only the public authorities appropriating the land are authorized to take proceedings for the assessment, it must be held to be void.^ But if the remedy is adequate, and the party is allowed to pursue it, it is not unconstitutional to limit the period in which he shall resort to it, and to provide that, unless he shall take proceedings for the assessment of damages within a specified time, all right thereto shall be barred.* The right to compensation, when prop- erty is appropriated by the public, may always be waived ; ^ and a failure to apply for and have the compensation assessed, when reasonable time and opportunity and a proper tribunal are afforded for the purpose, may well be considered a waiver. Where, however, the property is not taken by the State, or by a municipality, but by a private corporation which, though for this purpose to be regarded as a public agent, appropriates it for the benefit and profit of its members, and which may or may not be sufficiently responsible to make secure and certain the payment, in all cases, of the compensation which shall be assessed, it is cer- tainly proper, and it has sometimes been questioned whether it was not absolutely essential, that payment be actually made before the owner could be devested of his freehold.* Chancellor Kent should be paid to the owner by the ooun- Haven, &e., Co. 16 Conn. 146 ; s. c. 3ft ty treasurer, suflSciently secured its pay- Am. Dec. 477. The party making an ap- ment. And see Zimmerman v. Canfield, propriation may abandon it if the terms, 42 Ohio St. 463; Talbot v. Hudson, 16 when ascertained, are not satisfactory. Gray, 417 ; Chapman v. Gates, 54 N. Y. Lamb v. Schotter, 54 Cal. 819. But not 132. But it is not competent to leave after judgment: Drath v. Burlington, compensation to be made from the earn- &c. R. R. Co., 16 Neb. 367 ; nor after ver- ings of a railroad company. Conn. Riv. diet when an appeal has been taken and K. R. Co. V. Commissioners, 127 Mass. entry made. Witt v. St. Paul, &c. R. R. 60;s. o 34 Am. Dec. 338. Co., 35 Minn. 404. But see Denver & 1 Shepardson v. Milwaukee & Be- N. O. R. R. Co. o. Lamborn, 8 Col. 380, loit R. R. Co. 6 Wis. 605; Powers o. contra. Bears, 12 Wis. 213. See McCann v. * People v. Green, 3 Mich. 496 ; Char- Sierra Co., 7 Cal. 121 ; Colton ». Rossi, lestown Branch R. R. Co. v. Middlesex, *7 9 Cal. 595; Ragatz u. Dubuque, 4 Iowa, Met. 78; Rexford o. Knight, 11 N. Y. 343. An impartial tribunal for the ascer- 808 ; Taylor v. Marcy, 26 111. 518 ; Calli- tainment of the damage must exist when son u. Hedrick, 15 Grat. 244 ; Gilmer v. the land is taken. State v. Perth Am- Lime Point, 18 Cal. 229 ; Harper v. Rich- boy, 18 Atl. Rep. 670 (N. J.). But in ardson, 22 Cal. 261 ; Cupp v. Commig- People V. Hayden, 6 Hill, 359, where the sioners of Seneca, 19 Ohio St. 173 ; Cage statute provided for appraisers who were v. Trager, 60 Miss. 563. to proceed to appraise the land as soon ' Matter of Albany St., 11 Wend. 149 ; as it was appropriated, the proper remedy s. c. 25 Am. Deo. 618; Brown v. Worces- of the owner, if they failed to perform ter, 13 Gray, 31 ; ante, p. 214. this duty, was held to be to apply for a * This is the intimation in Shepard- mandamus. If land is taken without pro- son v. Milwaukee ^ Beloit R. R. Co., 6 vision for compensation, the owner has a Wis. 606; Powers v. Bears, 12 Wis. 213; common-law remedy. Hooker v. New State v. Graves, 19 Md. 851 ; Dronberger 694 CONSTITUTIONAL LIMITATIONS. [CH. XV. has expressed the opinion that compensation and appropriation should be concurrent. "The settled and fundamental doctrine is, that government has no right to take private property for pub- lic purposes without giving just compensation; and it seems to be necessarily implied that the indemnity should, in cases which will admit of it, be previously and equitably ascertained, and be ready for reception, concurrently in point of time with the actual exercise of the right of eminent domain." ^ And while this is not an inflexible rule unless in terms established by the constitution, it is so just and reasonable that statutory provisions for taking private property very generally make payment precede or accom- pany the appropriation, and by several of the State constitutions this is expressly required.^ And on general principles it is essen- tial that an adequate fund be provided from which the owner of the property can certainly obtain compensation ; it is not compe- tent to deprive him of his property, and turn him over to an ac- tion at law against a corporation which may or may not prove responsible, and to a judgment of uncertain efficacy.^ For the consequence would be, in some cases, that the party might lose his estate without redress, in violation of the inflexible maxim upon which the right is based. What the tribunal shall be which is to assess the compensation i>. Reed, 11 Ind. 420; Loweree v. Newark, requiring payment before appropriation 88 N. J. 151. But see Calking v. Bald- is given to the Constitution of Illinois, win, 4 Wend. 667 ; 8. o. 21 Am. Dee. 168. Cook v. South Park Com'rs, 61 111. 115, I 2 Kent, 339, note. and cases cited ; Phillips v. South Park - The Constitution of Florida provides Com'rs, 119 111: 626. * " that private property shall not be taken » Shepardson v. Milwaukee & Beloit or applied to public use, unless just com- R. R. Co., 6 Wis. 605; Walther v. War- pensation be first made therefor." Art. 1, ner, 25 Mo. 277 ; Gilmer v. Lime Point, § 14. See also, to the same effect. Con- 18 Cal. 229 ; Curran v. Shattuck, 24 Cal. stitution of Colorado, art. 1, § 15; Consti- 427 ; Memphis & Charleston R. R. Co. v. tutioB of Georgia, art. 1, § 17 ; Constitu- Payne, 37 Miss. 700 ; Henry v. Dubuque tion of Iowa, art. 1, § 18 ; Constitution of & Pacific R. R. Co., 10 Iowa, 540 ; Ash Kansas, art. 12, § 4 ; Constitution of Ken- v. Cummings, 50 N. H. 591; Carr v. tucky, art. 13, § 14 ; Constitution of Georgia R. R. Co., 1 Ga. 524 ; Southwest- Maryland, art. 1, § 40; Constitution of em R. R. Co. «. Telegraph Co., 46 Ga. 43; Minnesota, art. 1, § 13; Constitution of Yazoo Delta Levee Board v. Daney, 65 Mississippi, art. 1, § 13; Constitution Miss. 335 ; State ». Mclver, 88 N. c" 686. of Missouri, art. 2, § 21 ; Constitution of Statutory provisions for a deposit under Nevada, art. 1, § 8 ; Constitution of Ohio, an order of court pending a contest about art. 1, § 19; Constitution of Pennsyl- compensation, in order that the work may vania, art. 1, § 10. The Constitution of not be delayed, are valid. Ex parte Rev- Indiana, art. 1, § 21, and that of Ore- nolds, 12 S. W. Rep. 570 (Ark.) ; citing gon, art. 1, § 19, require compensation St. Louis & S. F. R. R. Co. v. Evans, &c. to be first made, except when the prop- Brick Co., 86 Mo. 307 ; Centr. B. U. P. erty is appropriated by the State. The E. R. Co. v. Atchison, &c. Co., 28 Kan. Constitution of Alabama, art. 1, § 24, and 453 ; Wagner v. Railway Co., 38 Ohio St. of South Carolina, art. 1, § 28, are in legal 32. See also McClain v. People, 9 Col. effect not very different. A construction 190. CH. XV.] THE EMINENT DOMAIN. 695 must be determined either by the constitution or by the statute which provides for the appropriation. The case is not one where, as a matter of right, the party is entitled to a trial by jury, un- less the constitution has provided that tribunal for the purpose.^ Nevertheless, the proceeding is judicial in its character, and the party in interest is entitled to have an impartial tribunal, and the usual rights and privileges which attend judicial investiga- tions.2 It is not competent for the State itself to fix the compen- sation through the legislature, for this would make it the judge in its own cause.^ And, if a jury is provided, the party must have the ordinary opportunity to appear when it is to be impanelled, that he may make any legal objections.* And he has the same right to notice of the time and place of assessment that he would have in any other case of judicial proceedings, and the assessment will be invalid if no such notice is given.^ These are just as well as familiar rules, and they are perhaps invariably recognized in legislation. It is not our purpose to follow these proceedings, and to at- tempt to point out the course of practice to be observed, and which is so different under the statutes of different States. An 1 Petition of Mount Washington Co., 85 N. H. 134 ; Ligat i>. Commonwealth, 19 Pa. St. 456, 460; Ricli v. Chicago, 59 111. 286 ; Ames v. Lake Superior, &c. R. E. Co., 21 Minn 241 ; United States v. Jones, 109 U. S. 513 ; Oliver v. Union, &c. R. R. Co., 9 S. E. Rep. 1086 (Ga.). 2 Rich V. Chicago, 59 111. 286 ; Cook v. South Park Com'rs, 61 111. 115 ; Ames v. Lake Superior, &c. B. R. Co., 21 Minn. 241. Whatever notices, &c., the law re- quires, must be given. People v. Enis- kern, 54 N. T. 52 ; Powers's Appeal, 29 Mich. 504. A judgment for damages where a railroad has entered without paying is enforceable against a purchaser of the road upon foreclosure. Bufialo, N. Y. & P. R. R. Co. V. Harvey, 107 Pa. St. 319. ' Charles River Bridge v. Warren Bridge, 7 Pick. 344; s. c. 11 Pet. 420, 571, per McLean, J. And see Rhine v. McKinney, 53 Tex. 354 ; Tripp v. Over- ocker, 7 Col. 72. * People V. Tallman, 36 Barb. 222; Booneville v. Ormrod, 26 Mo. 193. That it is essential to any valid proceedings for the appropriation of land to public uses that the owner have notice and an opportunity to be heard, see Baltimore, &c. R. R. Co. V. Pittsburg, &o. R. R. Co., 17 W. Va. 812. A jury, without further explanation in the law, must be under- stood as one of twelve persons. Lamb v. Lane, 4 Ohio St. 167. See ante, p. 390. Where a jury is the constitutional tribu- nal, it is not waived by failure to demand it. Port Huron, &c. By. Co. v. Callanan, 61 Mich. 12. Nor can a court of chancery usurp its functions. Clark v. Drain Com'r, 50 Mich. 618. It must act even where an officer only takes material from an indi- vidual's land to repair roads. Hendershot V. State, 44 Ohio St. 208. It need not, where the amount of a deposit is to he fixed pending a final determination of compensation. Ex parte 'Reynolds, 12 S. W. Rep. 570 (Ark.). But see Wagner v. Railway Co., 38 Ohio St. 32, The jury may not disregard testimony and deter- mine compensation solely upon its view of the land. Grand Rapids v. Perkins, 48 N. W. Rep. 1037 (Mich.). 6 Hood V. Finch, 8 Wis. 381 ; Dickey V. Tennison, 27 Mo, 873; Powers's Ap- peal, 29 Mich. 504. Notice by publica- tion may be sufficient. Huling v. Kaw Valley Ry. Co , 130 U. S. 559 ; Missouri Pac. Ry. Co. v. Houseman. 21 Pao. Rep. 284 (Kan ). As to the right to order re- assessments, see Clark v. Miller, 64 N. Y. 528. 696 CONSTITUTIONAL UMITATIONS. [CH. XV. inflexible rule should govern them all, that the interest and ex- clusive right of the owner is to be regarded and protected so far as may be consistent with a recognition of the public necessity. While the owner is not to be disseised until compensation is pro- vided, neither, on the other hand, when the public authorities have taken such steps as finally to settle upon the appropriation, ought he to be left in a state of uncertainty, and compelled to wait for compensation until some future time, when they may see fit to use his land. The land should either be his or he should be paid for it. Whenever, therefore, the necessary steps have been taken on the part of the public to select the property to be taken, locate the public work, and declare the appropriation, the owner becomes absolutely entitled to the compensation, whether the public proceed at once to occupy the property or not. If a street is legally es- tablished over the land of an individual, he is entitled to demand payment of his damages, without waiting for the street to be opened.^ And if a railway line is located across his land, and the damages are appraised, his right to payment is complete, and he cannot be required to wait until the railway company shall actually occupy his premises, or enter upon the construction of the road at that point. It is not to be forgotten, however, that the proceed- ings for the assessment and collection of damages are statutory, and displace the usual remedies ; that the public agents who keep within the statute are not liable to common-law action ; ^ that it is only where they fail to follow the statute that they render themselves liable as. trespassers;* though if they construct their work in a careless, negligent, and improper manner, by means of which carelessness, negligence, or improper construction a party is injured in his rights, he may have an action at the common law as in other cases of injurious negligence.* The principle upon which the damages are to be assessed is al- 1 Philadelphia v. Diekson, 38 Pa. St. « East & West India Dock, &c. Co, 247 ; Philadelphia i: Dyer, 41 Pa. St- v. Gattke, 15 Jur. 61 ; Kimble b. White 463 ; Hallock v. Franklin County, 2 Met. Water Valley Canal, 1 Ind. 285 ; Mason 658; Harrington i>. County Commission. t». Kennebec, &c. R. E. Co., 31 Me. 215 j ers, 22 Pick. 263; Blake v. Dubuque, 13 Aldrieh u. Cheshire R. R. Co., 21 N. H. Iowa, 66 ; Higgins t>. Chicago, 18 IlL 276 ; 359 ; Brown v. Beatty, 34 Miss. 227 ; Pet- County of Peoria v. Harvey, 18 111. 864 ; tibone v. La Crosse & Milwaukee R. R. Shaw «. Charlestown, 3 Allen, 538; Co., 14 Wis. 443 ; Vilas i>. Milwaukee & Hampton », Coffin, 4N. H. 517 ; Clough v. Mississippi R. R. Co., 15 Wis. 233. Unity, 18 N. H. 75. And where a city = Dean v. Sullivan R. R. Co., 22 N. H. thus appropriates land for a street, it 316 ; Fumiss v. Hudson River R. R. Co., would not be allowed to set up, in defence 6 Sandf. 551. to a demand for compensation, its own ir- ♦ Lawrence v. Great Northern R. Co., regularities in the proceedings taken to 20 L. J. Q. B. 293 ; Bagnall a. London & condemn the land. Higgins v. Chicago, 18 N. W. R., 7 H. & N. 423 j Brown v. Cayug» DL 276 ; Chicago v. Wheeler, 25 111. 478. & Susquehanna R. R. Co., 12 N. Y. 486. CH. XV.] THE EMINENT DOMAIIT. 697 ways an important consideration in these cases ; and the circum- stances of different appropriations are sometimes so peculiar that it has been found somewhat difficult to establish a rule that shall always be just and equitable; If the whole of a man's estate is taken, there can generally be little difficulty in fixing upon the measure of compensation ; for it is apparent that, in such a case, he ought to have the whole market value of his premises, and he cannot reasonably demand more. The question is reduced to one of market value, to be determined upon the testimony of those who have knowledge upon that subject, or whose business or ex- perience entitles their opinions to weight. It may be that, in such a case, the market value may not seem to the owner an adequate compensation ; for he may have reasons peculiar to himself, spring- ing from association, or other cause, which make him unwilling to part with the property on the estimate of his neighbors ;. but such reasons are incapable of being taken into account in legal proceed- ings, where the question is one of compensation in money, inas- much as it is manifestly impossible to measure them by any standard of pecuniary value. Concede to the government a right to appro- priate the property on paying for it, and we are at once remitted to the same standards for estimating values which are applied in other cases, and which necessarily measure the worth of property by its value as an article of sale, or as a means of producing pecu- niary returns. When, however, only a portion of a parcel of land is appro- priated, just compensation may perhaps depend upon the effect which the appropriation may have on the owner's interest in the remainder, to increase or diminish its value, in consequence of the use to which that taken is to be devoted, or in consequence of the condition in which it may leave the remainder in respect to convenience of use. If, for instance, a public way is laid out through a tract of land which bffore was not accessible, and if in consequence it is given a front, or two fronts, upon the street,* which furnish valuable and marketable sites for building lots, it may be that the value of that which remains is made, in conse- quence of taking a part, vastly greater than the whole was before, and that the owner is benefited instead of damnified by the appro- priation. Indeed, the great majority of streets in cities and vil- lages are dedicated to the public use by the owners of lands, with- out any other compensation or expectation of compensation than the increase in market value which is expected to be given to such lands thereby ; and this is very often the case with land for other public improvements, which are supposed to be of peculiar value to the locality in which they are made. But where, on the other 698 CONSTITUTIONAL LIMITATIONS. [CH. XV. hand, a railroad is laid out across a man's premises, running be- tween his house and his out-buildings, necessitating, perhaps, the removal of some of them, or upon such a grade as to render deep cuttings or high embankments necessary, and thereby greatly in- creasing the inconveniences attending the management and use of the land, as well as the risks of accidental injuries, it will often happen that the pecuniary loss which he would suffer by the ap- propriation of the right of way would greatly exceed the value of the land taken, and to pay him that value only would be to make very inadequate compensation. It seems clear that, in these cases, it is proper and just that the injuries suffered and the benefits received by the proprietor, as owner of the remaining portion of the land, should be taken into account in measuring the compensation. This, indeed, is gener- ally conceded; but what injuries shall be allowed for, or what benefits estimated, is not always so apparent. The question, as we find it considered by the authorities, seems to be, not so much what the value is of that which is taken, but whether what re- mains is reduced in value by the appropriation, and if so, to what extent; in other words, what pecuniary injury the owner sus- tains by a part of his land being appropriated. But, in estimating either the injuries or the benefits, those which the owner sustains or receives in common with the community generally, and which are not peculiar to him and connected with his ownership, use, and enjoyment of the particular parcel of land, should be alto- gether excluded, as it would be unjust to compensate him for the one, or to charge him with the other, when no account is taken of such incidental benefits and injuries with other citizens who receive or feel them equally with himself, but whose lands do not chance to be taken.^ 1 In Somerville & Easton E. R. Co. ments or excavations, and, in general, ads. Douglity, 22 N. J. 495, a motion was the effect of the railroad upon his adjacent made for a new trial on an assessment of lands, in deteriorating their value in compensation for land taken by a railroad the condition they were found, whether company, on the ground that the judge adapted for agricultural purposes only, in his charge to the jury informed them or for dwellings, stores, shops, or other " that they were authorized by law to like purposes." ascertain and assess the damages sus- " On a careful review of this charge," tained by the plaintiff to his other lands says the judge, delivering the opinion of not taken and occupied by the defendants ; the court, "I cannot see that any legal to his dwelling-house, and other buildings principle was violated, or any unsound and improvements, by reducing their doctrine advanced. The charter provides value, changing their character, obstruct- that the jury shall assess the value of the ing their free use ; by subjecting his land and materials taken by the company, buildings to the hazards of fire, his fam- and the damages. The damages here ily and stock to injury and obstruction contemplated are not damages to the land in their necessary passage across the road ; actually occupied or covered by the road, the inconvenience caused by embank- but such damages as the owner may sus- CH. XV.] THE EMINENT DOMAIN. 699 The question, then, in these cases, relates first to the value of the land appropriated ; which is to be assessed with reference to what it is worth for sale, in view of the uses to which it may be applied, and not simply in reference to its productiveness to the owner in the condition in which he has seen fit to leave it.^ Sec- tain in his other and adjacent lands not oc- cupied by the company's road. His build- ings may be reduced in value by the con- tiguity of the road and the use of engines upon it. His lands and buildings, before adapted and used for particular purposes, may, from the same cause, become utterly unfitted for such purposes. The owner may be incommoded by high embank- ments or deep excavations on the line of the road, his buildings subjected to greater hazard from fire, his household and stock toinjury and destruction, unless guarded with more than ordinary care. It requires no special experience or saga- city to perceive that such are the usual and natural effects of railroads upon the adjoining lands, and which necessarily de- teriorate not only their marketable but their intrinsic value. The judge, there- fore, did not exceed his duty in instruct- ing the jury that these were proper sub- jects for their consideration in estimating the damages which the plaintiff might sustain by reason of the location of this road upon and across his lands." And in the same case it was held that the jury, in assessing compensation, were to adopt as the standard of value for the lands taken, not such a price as they would bring at a forced sale in the market for money, but such a price as they could be purchased at, provided they were for sale, and the owner asked such prices as, in the, opinion of the community, they were rea- sonably worth ; that it was matter of uni- versal experience that land would not always bring at a forced sale what it was reasonably worth, and the owner, not de- siring to sell, could not reasonably be re- quired to take less. In Sater v. Burlington & Mount Pleasant Flank Boad Co., 1 Iowa, 386, 393, Mdl, J., says : " The terms used in the constitution, 'just com- pensation,' are not ambiguous. They un- doubtedly mean a fair equivalent ; that the person whose property is taken shall be made whole. But while the end to be attained is plain, the mode of arriving at it is not without its difficulty. On due consideration, we see no more practical rule than to first ascertain tlie fair mar- ketable value of the premises over which the proposed improvement is to pass, ir- respective of such improvement, and also a like value of the same, in the condition in which they will be immediately after the land for the improvement has been taken, irrespective of the benefit which will result from the improvement, and the difference in value to constitute the measure of compensation. But in ascer- taining the depreciated value of the prem- ises after that part which has been taken for public use has been appropriated, re- gard must be had only to tiie immediate, and not remote, consequence of the ap- propriation ; that is to say, the value of the remaining premises is not to be de- preciated by heaping consequence on con- sequence. While we see no more practical mode of ascertainment than this, yet it must still be bqrne in mind that this is but a mode of ascertainment ; that, after all, the true criterion is the one provided by the constitution, namely, just compen- sation for the property taken." See this rule illustrated and applied in Henry v. Dubuque & Pacific B. B, Co., 2 Iowa, 300, where it is said : " That the language of the constitution means that the person whose property is taken for public use shall have a fair equivalent in money for the injury done him by such taking ; in other words, that he shall be made whole so far as money is a measure of compen- sation, we are equally clear. This just compensation should be precisely com- mensurate with the injury sustained by having the property taken ; neither more nor less." And see Bichmond, &c. Co. v. Bogers, 1 Duvall, 136; Bobinson v. Bob- inson, 1 Duvall, 162 ; Holton v. Milwau- kee, 31 Wis. 27 J Boot's Case, 77 Pa. St. 276 ; East Brandywine, &c. B. B. Co. v. Banck, 78 Pa. St. 454. 1 Matter of Furman Street, 17 Wend. 649 ; Tidewater Canal Co. v. Archer, 9 Gill & J. 479; Sater v. Burlington, &c. B. B. Co., 1 Iowa, 386 ; Parks v. Boston. 700 CONSTITUTIONAL LIMITATIONS. [CH.KV. ond, if less than the whole estate is taken, then ihere is further to be considered how much the portion not taken is increased or diminished in value in consequence of the appropriation.^ 15 Pick. 206 ; First Parish, &q. b, Middle- sex, 7 Gray, 106 ; Dickenson v. Inhabitants of Fitchburg, 13 Gray, 646 ; Lexington o. Long, 31 Mo. 369 ; Moultoa v. Newbury- port Water Co., 137 Mass. 163. The com- pensation should be the fair cash market value of the land taken : Brown v. Calii- met R. Ry. Co., 125 ni. 600 ; including that of appurtenances used in connection with it : Chicago, S. F. & C. Ry. Co. v. Ward, 128 111. 849; but not the value of an illegal use. Kingsland v. Mayor, 110 N. Y. 569. While its value as mineral land may be considered : Doud v. Mason City, &e. Ry. Co., 76 Iowa, 438, the esti- mated specific value of minerals in it may not. Reading & P. R, R. Co. v. Balthaser, 119 Pa. St. 472. Where rail- road land is taken, the reasonable expec- tation of future use is to be considered. Portland & R. R. R. Co. v. Deering, 78 Me. 61. The availability of land for a bridge site or ferry landing may be con- sidered : Little Rock June. Ry. Co. v. WoodrufE, 49 Ark. 381 ; Little Rock & P. S. By. Co. V. McGehee, 41 Ark. 202 ; but not the enhanced value due to the pro- posed improvement. Shenandoah Y. R. R. Co. H. Shepherd, 26 W. Va. 672. Nor can the damage to the ferry privilege by build- ing a bridge be compensated for. Moses V. Sanfard, 11 Lea, 731. Compare Mason V. Harper's Ferry B. Co., 17 W. Va. 399. 1 Deaton i'. Polk, 9 Iowa, 594 ; Parka V. Boston, 15 Pick. 198; Dickenson v. Fitchburg, 13 Gray, 546 ; Harvey v. Lackawanna, &c. R. R. Co., 47 Pa. St. 428; Newby o. Platte County, 25 Mo. 258 ; Pacific R. R. Go. a. Chrystal, 25 Mo. 544; Somerville & Easton R. R. Co. ads. Doughty, 22 N. J. 495 ; Carpenter ti. Landaff, 42 N. H. 218; Troy & Boston B. R. Co. V. Lee, 13 Barb. 169; Tide- water Canal Co. «. Archer, 9 Gill and J. 479 ; Winona & St. Paul R. H. Co. v. Waldron, 11 Minn. 515 ; Nicholson v. N. Y. & N. H. B. B. Co., 22 Conn. 74; Nichols V. Bridgeport, 23 Conn. 189 ; Harding v. Funk, 8 Kan. 315 ; Holton v. Milwaukee, 31 Wis. 27. If the whole tract is not taken, the value of the part taken as part of the whole should be allowed. Chicago, ?. & N. R. R. Co. V. Bowman, 122 lU. 595 ; Balfour v. Louisville, &o. R. R. Co., 62 Miss. 508 ; Asher v. Louisville, &c. R. R. Co., 87 Ky. 391. As to liow far different lots or sub-divisions used as one tract are to be held one parcel within this rule, ' see Port Huron, &o, Ry. Co. 0, Voorheas, 50 Mich. 506 ; Wil. cox 0. St. Paul, &c. By. Co., 35 Minn. 439; Cox ». Mason City, &u. R. Co., 77 Iowa, 20; Ham u. Wisconsin, &q. Ry. Co., 61 Iowa, 716; Northeastern Neb. Ry. Co. v. Frazier, 40 N. W. Rep. 604; Cameron v. Chicago, &e. Ry. Co., 43 N. W. Rep. 785 (Minn.); Potts b. Penn. S. V. R. R. Co., 119 Pa. St. 278. " Compensation is an equivalent for prop- erty taken, or for an injury. It must be ascertained by estimating the actual damage the party has sustained. That damage is the sum of the actual value of the property taken, and of the injury done to the residue of the property by the use of that part which is taken. The benefit is, in part, an equivalent to the loss and damage. The loss and damage of the defendant is the value of the land the company has taken, and the injury wiiich tlie location and use of the road through his tract may cause to the re- mainder. The amount which may be assessed for these particulars the com- pany admits that it is bound to pay. Bat, as a set-off, it claims credit for the benefit the defendant has received from the construction of the road. That bene- fit may consist in the enhanced value of the residue of his tract. When the com- pany has paid the defendant the excess of his loss or damage over and above the benefit and advantage he has derived from the road, he will have received a just compensation. It is objected that the enhanced salable value of the land should not be assessed as a benefit to the defend- ant, because it is precarious and uncertain. The argument admits that the enhanced value, if permanent, should be assessed. But whether the appreciation is perma- nent and substantial, or transient and illusory, is a subject about which the court is not competent to determine. It must be submitted to a, jury, who will give credit to the company according to CH. XV.] THE EMINENT DOMAIN. 701 But, in making this estimate, there must be excluded from con- sideration those benefits which the owner receives only in common with the community at large in consequence of his ownership of other property,^ and also those incidental injuries to other property, the circumstances. The argument is not tenable, that a,n increased salable value is no benefit to the owner of land unless he sells it. This is true if it be assumed that the price will decline. The chance of this is estimated by the jury, in the amount which they may assess for that benefit. The sum assessed is therefore (so far as human foresight can anticipate the future) the exponent of the substantial increase of the value of the land. This is a bene fit to the owner, by enlarging his credit and his ability to pay his debts or pro- vide for his family, in the same manner and to the same extent as if his fortune was increased by an acquisition of prop- erty." Greenville & Columbia K. B. Co. V. Fartlow, 5 Rich. 428. And see Pennsylvania R. R. Co. v. Heister, 8 Pa. St. 446; Matter of Albany Street, 11 Wend. 149 ; s. c. 25 Am. Dec. 618 ; Upton V. South Reading Branch R. R., 8 Cush. 600; Proprietors, &c. ». Nashua & Lowell R. R. Co., 10 Cush. 385 ; Mayor, &o. of Lexington v. Long, 31 Mo. 369; St. Louis, &c. R. R. Co. v. Richardson, 45 Mo. 466 ; Little Miami R. R. Co. v. Col- lett, 6 Ohio St. 182; Bigelow v. West Wisconsin B. R. Co., 27 Wis. 478. In Newby v. Platte County, 25 Mo. 258, the right to assess benefits was referred to the taxing power; but this seems not necessary, and Indeed somewhat difficult on principle. See Sutton's Heirs v. Louis- Tille, 5 Dana, 28. 1 Dickenson «. Inhabitants of Fitcht burg, 13 Gray, 546 ; Childs «. New Haven &c. R. R. Co., 133 Mass. 253 ; Newby v. Platte County, 25 Mo. 258; Pacific R. R. Co. V. Chrystal, 25 Mo. 544 ; Carpenter v. Landaff; 42 N. H. 218; Mount Washing- ton Co.'s Petition, 35 N. H. 1.34 ; Penrice i>. Wallis, 37 Miss. 172 ; Haislip v. Wil- mington, &c. R. R. Co., 102 N. C. 376; Omaha v. Schaller, 42 N. W. Rep. 721 (Nftb.); Railroad Co. ». Foreman, 24 W. Va. 662; Palmer Co. v. Perrill, 17 Pick. 58; Meacham v. Fitchburg R. R. Co., 4 Cush. 291, where the jury were instructed that, if they were satisfied that the laying out and constructing of the railroad had occasioned any benefit or advantage to the lands of the peti- tioner through which the road passed, or lands immediately adjoining or connected therewith, rendering the part not taken for the railroad more convenient or use- ful to the petitioner, or giving it some peculiar increase in value compared with other lands generally in the vicinity, it would be the duty of the jury to allow for such benefit, or increase of value, by way of set-off, in favor of the railroad company ; but, on the other hand, if the construction of the railroad, by increasing the convenience of the people of the town generally as a place for residence, and by its anticipated and probable effect in in- creasing the population, business, and general prosperity of the place, had been the occasion of an increase in the salable value of real estate generally near the station, including the petitioner's land, and thereby occasioning a benefit or ad^ vantage to him, in common with other owners of real estate in the vicinity, this benefit was too contingent, indirect, and remote to be brought into consideration in settling the question of damages to the petitioner for taking his particular parcel of land. Upton v. South Reading Branch R. R. Co., 8 Cush. 600. See Pittsburgh, &c. R. R. Co. V. Reich, 101 III. 157 ; Chi- cago, B. & N. R. R. Co. V. Bowman, 122 III. 505. Remote and speculative bene- fits are not allowed. Whitely v. Miss., &c. Co., 38 Minn. 523. Locating a depot near a lot is not a special benefit. Wash- burn V. Milwankee,&c. R. R. Co., 59 Wis; 364. It has sometimes been objected, with great force, that it was unjust and oppressive to set off benefits against the loss and damage which the owner of the property sustains, because thereby he is taxed for such benefits, while his neigh' bors, no part of whose land is taken, enjoy the same benefits without the loss ; and the courts of Kentucky have held it to be unconstitutional, and that full compensai- tion for the land taken must be made in money. Sutton v. Louisville, 5 Dana, 28 ; Rice V. Turnpike Co., 7 Dana, 81 ; Jacob V. Louisville, 9 Dana, 114. So in Missis- sippi. Natchez, J. & C. R. R. Co', v. Cur- 702 CONSTITUTIONAL LIMITATIONS. [CH. XV. such as would not give to other persons a right to compensation ; ^ while allowing those which directly affect the value of the remain- der of the land not taken, such as the necessity for increased fencing, and the like.^ And if an assessment on these principles makes the benefits equal the damages, and awards the owner noth- ing, he is nevertheless to be considered as having received full compensation, and consequently as not being in position to com- plain.3 But in some States, by constitutional provision or by statute, the party whose property is taken is entitled to have the value assessed to him without any deduction for benefits.* Tie, 62 Miss. 606. And some other States have established, by their constitutions, the rule that benefits shall not be de- ducted. See cases note 4, below. That the damage and benefits must be separ- ately assessed and returned by the jury where part only of the land is taken, see Detroit v. Daly, 68 Mich. 503. But the cases generally adopt the doctrine stated in the text ; and if the owner is paid his actual damages, he has no occasion to complain because his neiglibors are fortu- nate enough to receive a benefit. Green- ville & Columbia B. B. Co. v. Fartlow, 5 Eich. 428; Mayor, &o. of Lexington v. Long, 81 Mo. 369. Benefits to the adja^ cent property owned in severalty may be deducted from damage to property owned jointly. Wilcox v. Meriden, 57 Conn. 120. 1 Somerville, &c. B. B. Co. ads. Doughty, 22 N. J. 495; Dorian v. East Brandywine, &c. B. B. Co., 46 Pa. St. 520; Proprietors, &c. v. Nashua & Lowell B. B. Co., 10 Cush. 385 ; Louis- ville & Nashville B. K. Co. v. Thomp- son, 18 B. Monr. 735; Winona & St. Peter's E. E. Co. v. Denman, 10 Minn. 267 ; Shenandoah V. B. B. Co. v. Shep- herd, 26 W. Va. 672; Stone v. Inh. of Heath, 135 Mass. 561; Com'rs Dickinson Co. V. Hogan, 39 Kan. 606. So of in- creased danger from fire in case a rail- road is laid out. Texas & St. L. By. Co. V. Cella, 42 Ark. 528 ; Setzler v. Pa. &c. B. B. Co., 112 Pa. St. 56. ^ Pennsylvania E. B. Co. «. Eeister, 8 Pa. St. 445 ; Greenville , & Columbia E. E. Co. I). Partlow, 5 Eich. 428 ; Dear^ born V. Eailroad Co., 24 N. H. 179 ; Car- penter I). Landafl", 42 N. H. 218 ; Dorian V, East Brandywine, &c. E. E. Co., 46 Pa. St. 520; Winona & St. Peter's E. B. Co. V. Denman, 10 Minn. 267 ; Mount Washington Co.'s Petition, 35 N. H. 134. Where a part of a meeting-house lot was taken for a highway, it was held that the anticipated annoyance to worshippers by the use of the way by noisy and disso- lute persons on the Sabbath, could foriu no basis for any assessment of damages. First Parish in Woburu v. Middlesex County, 7 Gray, 106. 8 White V. County Commissioners of Norfolk, 2 Cush. 361 ; Whitman v. Bos- ton & Maine B. E. Co., 3 Allen, 133; Nichols V. Bridgeport, 23 Conn. 189; State V. Kansas City, 89 Mo. 34 ; Boss v. Davis, 97 Ind. 79. The benefits upon the owner's property not taken, but in the assessment district, may exceed the dam- ages. Genet v. Brooklyn, 99 N. Y. 296. But it is not competent for the commis- sioners who assess the compensation to require that which is to be made to be wholly or in part in anything else than money. An award of " one hundred and fifty dollars, with a wagoo-way and stop for cattle," is void, as undertaking to pay the owner in part in conveniences to be furnished him, and which he may not want, and certainly cannot be compelled to take instead of money. Central Ohio B. E. Co. V. Holler, 7 Ohio St. 220. See Eockford, &c. E. E. Co. v. Coppinger, 66 111. 510; Toledo, A. A. & N. By. Co. v. Munson, 57 Mich. 42. * Wilson ». Eockford, &a. E. E. Co., 59 111. 273 ; Carpenter v. Jennings, 77 111. 250; Todd v. Kankakee, &o. E. B. Co., 78 111. 530 ; Atlanta v. Central E. E. Co., 53 Ga. 120; Koestenbader ». Peirce,#41 Iowa, 204 ; Britton v. Des Moines, &c. E. E. Co., 59 Iowa. 540 ; Pacific Coast By. Co. V. Porter, 74 Cal. 261 ; Leroy & W. B. E. Co. V. Boss, 40 Kan. 598 ; Giesy v. Cincinnati, &c. E. E. Co., 4 Ohio St. 308} Woodfolk V. Nashville B. B. Co., 2 Swan, CH. XV.] THE EMINENT DOMAIN. 703 The statutory assessment of compensation will cover all con- sequential damages which the owner of the land sustains by means of the construction of the work, except such as may result from negligence or improper construction,^ and for which an action at the common law will lie, as already stated. 422 ; Memphis v. Bolton, Heisk. 608. In Illinois benefits may not be set off against tlie value of the land taken, but may be against damage to (and not taken. Harwood v. Bloomington, 124 111. 48. 1 Philadelphia & Beading B. B. Co. V. Yeiser, 8 Pa. St. 366 ; O'Connor v. Pittsburgh, 18 Pa. St. 187; Aldricb v. Cheshire B. E. Co., 21 N. H. 859 i Dear- born V. Boston, Concord, & Montreal E. E. Co., 24 N. H. 179 ; Eaton v. Boston C. & M. B. E. Co., 51 N. H. 504 ; Dodge V. County Commissioners, 3 Met. 380 ; Bruwn v. Providence, W. & B. E. E. Co., 5 Gray, 35 ; Mason u. Kennebec & Portland E. E. Co., 31 Me 215 ; Bellinger V. N. Y. Central E. E. Co., 23 N. Y. 42 ; Hatch B. Vt. Central E. E. Co., 25 Vt. 49 ; Slatten v. Des Moines Valley E. B. Co., 29 Iowa, 148 j Whitehouse v. Androscog- gin E. E. Co., 52 Me. 208 ; Denver City Irrig. Co. v. Middaugb, 21 Pac. Eep. 565 (Col.). But see Eoushlange v. Chicago, &c. By. Co., 115 Ind. 106. The rule ap- plies to cases of purchase instead of con- demnation. North & W. B. By. Co. v. Swank, 106 Pa. St. 555 ; Cassidy v. Old Colony E. E. Co., 141 Mass. 174 ; Houston & E. T. By. Co. V. Adams, 58 Tex. 476. The rule covers a case where a right of ac- tion existed for a former invalid condemn nation. Dunlap v. Toledo, &c. By. Co., 60 Mich. 470. A corporation appropriat- ing property under the right of eminent domain is always liable for any abuse of the privilege or neglect of duty under the law under which they proceed. Fehr v. Schuylkill Nav. Co., 69 Pa. St. 161 ; Ea- ton 1). Boston, C. & M. E. E. Co., 51 N. H. 504 ; Terre Haute, &c. E. E. Co. v. McKinley, 33 Ind. 274; Neilson v. Chi- cago, &c. By. Co., 58 Wis. 516. 704 CONSTITUTIONAL LIMITATIONS. [CH. XVL CHAPTER XVI. THE POLICE POWEB OP THE STATES. Frequently when questions of conflict between national and State authority are made, and also when it is claimed that gov- ernment has exceeded its just powers in dealing with the property and controlling the actions of individuals, it becomes necessary to consider the extent and pass upon the proper bounds of another State power, which, like that of taxation, pervades every depart- ment of business and reaches to every interest and every subject of profit or enjoyment. We refer to what is known as the police power. The police of a State, in a comprehensive sense, embraces its whole system of internal regulation, by which the State seeks not only to preserve the public order and to prevent offences against the State, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is rea- sonably consistent with a like enjoyment of rights by others.^ 1 Blaekstone defines the public police intelligence ; 8. Police for registration.'' and economy as " the due regulation and Edinburgh ed. of Works, Part IX, p. 157. domestic order of the kingdom, whereby Under the head of police for charity may the inhabitants of a State, like members be classed the provision which it is now of a well-governed family, are bound to customary with all enlightened States to conform their general behavior to the make for the custody and care, and if pos- rules of propriety, good neighborhood, sible the cure, of insane persons. That and good manners, and to be decent, in- the State, for the protection of others, dustrious, and inofiensire in their respec- may cause such persons to be restrained tive stations." 4 Bl. Com. 162. Jeremy of their liberty is undoubted, and it has Bentham, in his General View of Public been common to provide that this may OfCences, has this definition : " Police is be done on the certificate of physicians in general a system of precaution, either to the diseased mental condition. But for the prevention of crimes or of calam- while confinement on such a certificate ities. Its business maybe distributed may be justified when no mistake is made into eight distinct branches : 1. Police as to the fact, it is certain that it cannot for the prevention of offences ; 2. Police be if the person deprived of his liberty for the prevention of calamities ; 3. Po- was not in truth at the time insane. No lice for the prevention of endemic dis- number of physicians can be given the eases ; 4. Police of charity ; 5. Police of power to take from a sane man his liberty, interior communications ; 6. Police of without a public investigation in which he public amusements ; 7. Police for recent may produce his witnesses ; and any le- CH. XVI.] THE POLICE POWEB OF THE STATES. 705 In the present chapter we shall take occasion to speak of the police power principally as it affects the use and enjoyment of property ; the object being to show the universality of its pres- ence, and to indicate, so far as may be practicable, the limits which settled principles of constitutional law assign to its in- terference. No definition of the power can be more complete and satisfac- tory than some which have been given by eminent jurists in deciding cases which have arisen from its exercise, and which have been so often approved and adopte'd, that to present themjp any other than the language of the decisions would be unwise, if not inexcusable. Says Chief Justice Shaw, " We think it is a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and un- qualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this Commonwealth is . . . held subject to those general regula- tions which are necessary to the common good and general wel- fare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoy- ment as shall prevent them from being injurious, and to such reasonat)le restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient, This is very different from the right of eminent domain, — right of a government to take and appropriate private property whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power; the power vested in the legislature by the ^constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, , and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the Commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise."^ gislation assuming to confer such power 108 Mass. 116 ; Van Deusen v. Newcomer, would be void. On this general subject 40 Mich. 90; Morton v. Sims, 64 Ga. 298; the following cases are of interest : An- In re Gannon, 18 Atl. Eep. 159 {R. I.), derdon v. Burrows, 40 & P. 210 ; Fletcher i Oomraonwealth v. Alger, 7 Cush. 53, V. Fletcher, 1 El. & El. 420 ; Colby k. 84. See also Oommonwealth v. Tewks- Jackson, 12 N. H. 626 ; Look v. Dean, bury, 11 Met. 55 ; Hart v. Mayor, &c. of 46 706 ' CONSTITOTIONAL LIMITATIONS. [CH. XVI, « This police power of the State," says another eminent judge, "extends to the protection of the lives, limbs, health, comfort, and quiet of 3,11 persons, and the protection of all property within the State, According to the maxim, Sia utere tuo ut aliemim non li^das, which being of universal application, it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others." And again: [By this] "general police power of the State, persons and property are subjected to all kinds of restraints 8,»d burdens, in order to secure the general comfort, health, and prosperity of the State ; of the perfect right in the legislature to do which, no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are con- cerned," * And neither the power itself, nor the discretion to exercise it as need may require, can be bargained away by the State.2 Where ths Power it loeatecl. In the American constitutional system, the power to establish the ordinary regulations of police has been left with the individual States, and it cannot be taken from them, either wholly or in part, and exercised under legislor tion of CongresSjLXNeither can the national government, through^ [any of its departments or officers, assume any supervision of the police regulations of the States. All that the federal authority can do is to see that the States do not, under cover of this power, Albany, 9 Wend. 571 ; New Albany & * Be^r Coinpiuiy v. Maseachusetts, 97 Salem R. R, Co, v. Tilton, 12 Ind. 3 ; In- U. S. 25. 33, citing Boyd v. Alabama, H dianapolis & Cincinnati R. R. Co. v. U. S. 645. S^rch^val, 16 Ind. 84; Ohio & Missis- » So decided in United States v. De sjppi R. R. Co, ». McClelland, 25111, 140; Witt, 9 Wall. 41, In which a section of People V. Draper, 26 Barb. 344 ; Baltimore the Internal Revenue Act pf 1867— which V. State, 15 Md. 376 ; Police Commission- undertook to mak3 it a misdemeanor to ers V. Louisville, 8 Bush, 597 ; Wyne- mix for sale naphtha and illuminating ijampr ». People, 13 N, Y. ,S78 ; Taney, Ch, ojls, or to sell oil of petroleum inflammable J., in License Cases, 5 How, 504, 583; at ft less temperature than 110° Fahrenheit Waite, Ch. J., in Munn v. Illinois, 94 U. g. — was held to be a mere poliqe regula- Eep. 113, 124. tion, and as such void within the States, i Eedfidd, Ch. J., in Thorpe v. Rutland That the States may pass such laws, see &, Burjingtop R. R. Co,, 27 Vt. 140, Patterson a. Commonwealth, 11 Bush, 311. 149. See the maxim. Sic utere, &c„ — ^ license may be required for the ped» " Enjoy your own property in such man- dling of patented articles. People v. Rus- ner as not to injure that of another,"— sell, 49 Mieh. 617. On the general subject in Broom, Legal Maxims, (5th Am. ed.) of the police power of the States, see also p. 327; Wharton, Legal Maxims, No. XC. IJnited States v. Reese, 92 TJ. S. 214; See also Turbeville », Stampe, 1 LH, United States v, Cruikshank, 92 U. S. Ilaym. 264 ; and 1 Salk. 13 ; Jeffries v. 542, But the States cannot, by police Willi^nw, 5 EwJi, 792; Humphries v. regulattons, interfere with the control Sfogden, 12 Q. B. 739 ; Fixity v, Clark, by Congress over inter-state commerce. 8^5 ». T. 620 ; Philadelphia v. Scott, 81 Post, pp. 72P, 724, 782, and notes. Fa. S^. 80. CH. XVI.] THE POLICE POWER OF THE STATES. 707 invade the sphere of national sovereignty, obstruct or impede the exercise of any authority wliich the Constitution has confided to the nation, or deprive any citizen of rights guaranteed by the federal Constitution;'^ Conflict with Federal Authority. But while the general au- thority of the State is fully recognized, it is easy to see that the ' power might be so employed as to interfere with the jurisdiction of the general government ; and some of the most serious ques- tions regarding the police of the States concern the cases in which authority has been conferred upon Congress. In those cases it has sometimes been claimed that the ordinary police jurisdiction is by necessary implication excluded, and that, if it were not so, the State would be found operating within the sphere of the national powers, and establishing regulations which would either abridge the rights which the national Constitution under- . takes to render absolute, or burden the priTileges which are con- ferred by law of Congress, and which therefore cannot properly be subject to the interference or control of any other authority. But any accurate statement of the tiieory upon which the police power rests will render it apparent that a proper exercise of it by the State cannot come in conflict with the provisions of the Con- stitution of the United States.^ If the power extends only to a just regulation of rights with a view to the due protection and ehjoyment of all, and does not deprive any one of that which is justly and properly his own, it is obvious that its possession by the State, and its exercise for the regulation of the property and actions of its citizens, cannot well constitute an anvasion ci na- tional jurisdiction, or afford a basis for an appeal to the protec- tion of the national authorities. - Ohligation of Contracts. The occasions to consider this subject in its bearings upon the clause of the Constitution of the United States which forbids the States passing any laws impairing the obligation of contracts have been frequent and varied ; and it has- been held without dissent that this clause does not so far remove from State control the rights and properties which depend for 1 See this subject considered at large 129 U. S. 20, and cases cited. Congress in the License Cases, 5 How. 504, the has no power to authorize a business Passenger Coses, 7 How. 283, and the within a State which is prohibited by the Slaughter-House Case, 16 W^all. 36 ; Peo- State. License Tax Cases, 5 Wall. 462, pie V. Compagnie G^n., 107 U. S. 59 ; Head per Chase, Ch. J. In Canada, power over Money Cases, 112 U. S. 580. The Fou^- sales of liquor is in the Dominion parlia- teenth Amendment does not limit the ment, and, after license in pursuance of subjects in relation to which the police its authority, the provincial parliament power of the State may be exercised, cannot forbid. Severn «. The Queen, 2 Barbier «. Conolly, 11-3 U. S. 27 J Minne- Can. Sup. Ct. 71 ; Mayor, &c. v. The apolis & St. Louis Ry. Co. v. Beckwith, Queen, 3 Can. Sup. Ot. 608. 708 CONSTITDTIONAL LIMITATIONS. [CH. XVI, their existence or enforcement upon contracts, as to relieve them from the operation of such general regulations for the good gov- ernment of the State and the protection of the rights of individuals as may be deemed important. All contracts and all rights, it is declared, are subject to this power ; and not only may regulations which affect them be established by the State, but all such regula- tions must be subject to change from time to time, as the general well-being of the community may require, or as the circumstances may change, or as experience may demonstrate the necessity.^ 1 In the case of Thorpe v. Batland & Burlington R. K. Co., 27 Vt. 140, a ques- tion arose under a provision in the Ver- mont General Bailroad Law of 1849, which required each railroad corporation to erect and maintain fences on the line of its road, and also cattle-guards at all farm and road crossings, suitable and sufficient to prevent cattle and other ani- mals from getting upon the railroad, and which made the corporation and its agents liable for all damages which should be done by its agents or engines to cattle, horses, or other animals thereon, if occa- sioned by the want of such fences and cattle-guards. It was not disputed that tliis provision would be valid as to such corporations as might be afterwards cre- ated within the State ; but in respect to those previously in existence, and whose charters contained no such provision, it was claimed that this leg^lation was in- operative, since otherwise its effect would be to modify, and to that extent to violate, the obligation of the charter-con- tract. " The case," say the court, " re- solves itself into the narrow question of the right of the legislature, by general statute, to require all railways, whether now in operation or hereafter to be char- tered or built, to fence their roads upon both sides, and provide sufficient cattle- guards at all farm and road crossings, under penalty of paying all damages caused by their neglect to comply with such requirements. . . . We think the power of the legislature to control exist- ing railways in this respect may be found in the general control over the police of the country, which resides in the law- making power in all free States, and which is, by the fifth article of the bill of rights of this State, expressly declared to reside perpetually and inalienably in the legisla- ture; which is, perhaps, no more than the eiiunciation of a general principle ap- plicable to all free States, and which can- not therefore be violated so as to deprive the legislature of the power, even by ex- press grant to any mere public or private corporation. And wlien the regulation of the police of a city or town, by general ordinances, is given to such towns and cities, and the regulation of their own in- ternal police is given to railroads to be carried into effect by their by-laws and other regulations, it is of course always, in all such cases, subject to the superior control of the legislature. That is a res- ponsibility which legislatures cannot de- vest themselves of if they would. " So far as railroads are concerned, this police power which resides primarily and ultimately in the legislature is two- fold : 1. The police of the roads, wliich, in the absence of legislative control, the corporations themselves exercise over their operatives, and to some extent over all who do business with them, or come upon their grounds, through their general statutes, and by their officers. We ap- prehend there can be no manner of doubt that the legislature may-, if they deem the public good requires it, of which they are to judge, and in all doubtful cases their judgment is final, require the several rail- roads in the State to establish and main- tain the same kind of police which is now observed upon some of the more impor- tant roads in the country for their own security, or even such a police as is found upon the English railways, and those upon the continent of Europe. No one ever questioned the right of the Connecticut legislature to require trains upon all of their railroads to come to a stand before passing draws in bridges ; or of the Massa- chusetts legislature to require the same thing before passing another railroad. And by parity of reasoning may all rail- CH. XVI.] THE POLICE POWER OF THE STATES. 709 Perhaps the most striking illustrations of the principle here stated will be found among the judicial decisions which have held that the rights insured to private corporations by their charters, and the manner of their exercise, are subject to such new regula- tions as from time to time may be made by the State with a view to the public protection, health, and safety, and in order to guard properly the rights of other individuals and corporations. Al- though these charters are to be regarded as contracts, and the rights assured by them are inviolable, it does not follow that these rights are at once, by force of the charter-contract, removed from the sphere of State regulation, and that the charter implies an undertaking, on the part of the State, that in the same way in which their exercise is permissible at first, and under the regula- ways be required so to conduct them- selves as to other persons, natural or cor- porate, as not unreasonably to injure them or their property. And if the busi- ness of railways is specially dangerous, they may be required to bear the expense of erecting such safeguards as will render it ordinarily safe to others, as is often re- quired of natural persons under such cir- cumstances. "There would be no end of illustra- tions upon this subject. ... It may be extended to the supervision of tlie track, tending switches, rnnning upon the time of other trains, running a road with a single track, using improper rails, not us- ing proper precaution by way of safety- beams in case of the breaking of axle- trees, the number of brakemen upon a train with inference to the number of cars, employing intemperate or incom- petent engineers and servants, running beyond a given rate of speed, and a thou- sand similar tilings, most of which have' been made the subject of legislation or judicial determination, and all of which may be. Hegeman v. Western R. Co., 16 Barb. 353. "2. There is also the general police power of the State, by which persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosper- ity of the State ; of the perfect right in the legislature to do which no question ever was, 'or, upon acknowleged general principles, ever can he, made, so far as natural persons are concerned. And it is certainly calculated to excite surprise and alarm that the right to do the same in regard to railways should be made », se^ rious question." And the court proceed to consider the various cases in which the right of the legislature to regulate matters of private concern with reference to the general public good has been acted upon as unquestioned, or sustained by judicial decisions ; and quote, as pertinent to the general question of what laws are prohibited on the ground of impairing the obligation of contracts, the language of Chi^f Justice Marshall in Dartmouth College V. Woodward, 4 Wheat. 518, 629, that " the framers of the Constitution did not intend to restrain the States in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us is not to be BO construed." See, to the same effect, Suydara v. Moore, 8 Barb. 358; Waldron v. Rensselaer & Saratoga R. R. Co., 8 Barb. 390; Galena & Chicago U. E. R. Co. V. Loomis, 13 111. 548 ; Fitchburg R. R. V. Grand Junction R. R. Co., 1 Al- len, 552; Yeazie v. Mayo, 45 Me. 560; Peters e. Iron Mountain R. R. Co., 23 Mo. 107; Grannahan v. Hannibal, &c. R. R. Co., 30 Mo. 646 ; Indianapolis & Cincin- nati R. R. Co. V. Eercheval, 16 Ind. 84 ; Galena & Chicago U. R. R. Co. v. Ap- pleby, 28 111. 283 ; Blair v. Milwaukee, &c. R. R. Co., 20 Wis. 254 ; State v. Mathews, 44 Mo. 523 ; Commissioners, &c. v. Holy- oke Water Power Co., 104 Mass. 446; Railroad Co. v. Fuller, 17 Wall. 560 ; To- ledo, &c. R. R. Co. e. Deacon, 63 III. 91 ; Ames V. Lake Superior, &c. R. R. Co., 21 Minn. 241 ; N. W. Fertilizing Co. i'. Hyde Park, 70 111. 634; State o. New Haven, &c. Co., 43 Conn. 351. 710 CONSTITUTIONAL LIMITATIONS. [OH. XVL tions then existing, and those only, may the corporators continue to exercise their rights while the artificial existence Continues. The obligation of the contract by no means extends so far ; but, on the contrary, the rights and privileges which come into exist* ence under it are placed upon the same footing with other legal rights and privileges of the citizen, and subject in like manner to proper rules for their due regulation, protection, and enjoyment. The limit to the exercise of the police power in these cases must be this : the regulations must have reference to the comfort, safety, or welfare of society ; they must not be in conflict with any of the provisions of the charter ; and they must not, under pretence of regulation, take from the corporation any of the es- sential rights and privileges which the charter confers. In short, they must be police regulations in fact, and not ainendments of the charter in curtailment of the corporate franchise.^ The maxim, Sic utere tuo ut aliemmi non Icedas, is that which lies at the foundation of the power ; and to whatever enactment affecting the management and business of private coi-porations it cannot fairly be applied, the power itself will not extend. It has accordingly been held that where a corporation was chartered with the right to take toll from passengers over their fOad, a sub* sequent statute authorizing a certain class of persons to go toll free was void.^ This was not a regulation of existing rights, but it took from the corporation that which they before possessed, 1 Washington Bridge Co. v. State, 18 may be passed to punish neglect or mis- Conn. 53 ; Bailey v. Philadelphia, &c, R. R. conduct in conducting the ferries, to se> Co., 4 Harr. 389 ; State v. Noyes, 47 Me. cure the safety of passengers from danger 189 ; Pingry v. Washburn, 1 Aiken, 264 ; and imposition, &c. ' But the State can- Hiller v. N. T. & Erie R. B. Co., 21 not take away the ferries themselves, nor Barb. 513; People v. Jackson & Micbi- deprive the city of their legitimate rents gan Plank Road Co., 9 Mich. 285, 807 ; and profits." And see People v. Mayor, Sloan w. Pacific B. R. Co., 61 Mo. 24 ; At- &o. of New York, 32 Barb. 102, 116 ; Com- torney-Geueral v. Chicago &c. R. R. Co., monwealth v. Pennsylvania Canal Co., 66 35 Wis, 425. In Benson v. Mayor, &c. of Pa. St. 41 ; Hegeman v. Western H. R., New York, 10 Barb. 223, 245, it is said, 13 N. Y. 9. After the organization of a in considering a ferry riglit granted to a company for electric commanication, it city : " Franchises of this description are may be required to obtain the approval partly of a public and partly of a private of its plans by city commissioners before nature. So far as the accommodation of laying wires in the streets. People v. passengers is concerned, they are pMici Squire, 107 N. Y. 593. A provision tliat juris ; so far as they require capital and an insurance policy referring to the appli- produce revenue, they are pnvati juris, cation shall not be received in evidence Certain duties and burdens are imposed unless such application is attached to it, is upon the grantees, who are compensated valid as to policies issued thereafter by therefor by the privilege of levying ferri- an existing company. New Era Life Ins. age, and security from spoliation arising Co. v. Musser, 120 Pa. St. 884. from the irrevocable nature of the grant. * Pingry o. Washburn, 1 Aiken, 264. The State may legislate touching them. Of course the charter reserved no right 80 far as they are publid JuHi, Thus, laws to make such an amendment CH. XVI.] THE POLICE POWER OF ISE STATES. 711 namely, the right to toUSj and conferred apoft ittdividual^ that •which before they had not, namely, the privilege to pass over th6 road free of toll. " Powers," it is said in another case, " which can only be justified on this specific ground [that they are police regulations], and which would otherwise be clearly prohibited by the Constitution, can be such oaly as are so deafly necessary to the safety, comfort, and well-being of society, or io imperatively required by the pnblic necessity, as to lead to the rational and satisfactory conclusion that the framers of the Constitution could not, as men of ordinary prudence and foresight, have intended to prohibit their exercise iu the particular case, notwithstandilig the language of the prohibition would otherwise include it." ^ And it was therefore held that an act subsequent to the charter of a plank-road company, and not assented to by the Corporators, which subjected them to a total forfeiture of their franchises for that which by the charter was cause for partial forfeiture only, waS void as impairing the obligation of contracsts,' And even a prb* vision in a corporate charter, empowering the legislature to alter, Inodify, or repeal it would not authorize a sflbseqtient act which, on pretence of amendment, or of a police regulation, would have the effect to appropriate a portion of the corporate property to the public use.8 And where by its charter the corporation was em* 1 ChriBtiaKq/i J., in People v. ^acksdii, CoMrai Portland & K. R. R. Co. v. De^- & Michigan Flank Road Co., 9 Mictii ing, 78 Me. 61 ; eren if there is no resef'- 285, 307i Compare Commonwealth o. vafion in the charter of the right to altefj Pennsylvania Canal Co., 66 Pa. St. 41. &C. Boston & M. R. R. Co. v. Cofn'rs, 79 Where the corporation by its Charter has Me. 886. Companies tiiay be compelled the right to fix its own tolls for a sp^ci' to put in farm orossingB at their own ex- fled period, the legislature is without the penae. Ill< Ceotr. R. R.- Co. v. Willen- power to regulate ibem till that period borg, 117 III. 203. See also Moytclair v. ha« expired. Sloan ». Pacific R. R. Co-, Kew York, &ts, Ry. Co., 45 N. J. Eq, 436. 61 Mo. 24 ; s. c. 21 Am. Rep. 397. This, howere^, can Aiafcely be a mord ^ Ibid. And see State v. Noyes, 47 severe exercise pf the power than is th« Me. 189. ' amendment t6 the charter of a railroad ^ Detroit ». Plank Road Co., 48 Mich, oarpoftttaofi which limits the rates of fare 140. It has been held that the teser- and freight which may be cliarged; fof ration of a right fo amend or appeal the exercise of thi? might be carried to would not justify an act requiring a rail- an e^tient Which would annihilate the road company to cause a proposed new whole V(^e of railroad property, f he street or highway to be iaken across power, howerelv is very fuliy sustained/ their track, and to cause the necessary where the right to amend i« reserved in embankments, excavations, and other the charter. AttoKiey-General v. Chi- work to be done for that purpose at their cago, &c. R. R. Co., 35 Wis. 425 ; Blake own expense ; tlfu* fiot only appropriat- v. Winona, &o. R. R. Co,, 19 Minn. 418 j ing a part of their property to another s. o, 18 Am, Rep. 345; Chicago, &b. R. public ttse, but compelling them to fit it R. Co. v. Iowa, 94 U. S. 165; Piefc v. for such use : Miller v, N. Y. & Erie Chicago, &e. R. R. Co., 6 Biss. I77i See B. B. Co-, 21 Biai^b. 513; People ii. Lake a like rule applied to a ferry company Shore, &c- By. Co., 62 Mich. 277 j Chicago in Parker ». Metropolitan R. R, Cn^, 109 & G. T. By. Co. V. Eough, 61 Mich. 607. Mass. 603. A requirement that rates of 712 CONSTITUTIONAL LIMITATIONS. [CH. XVL powered to construct over a river a certain bridge, which must necessarily constitute an obstruction to the navigation of the river, a subsequent amendment making the corporation liable for such obstruction was held void, as in effect depriving the corporation of the very right which the charter assured to it.^ So where the charter Reserved to the legislature the right of modification after the corporators had been reimbursed their expenses in construct- ing the bridge, with twelve per cent interest thereon, an amend- ment before such reimbursement, requiring the construction of a fifty-foot draw for the passage of vessels, in place of one of thirty- two feet, was held unconstitutional and void.^ So it has been held that a power to a municipal corporation to regulate the speed of railway carriages would not authorize such regulation, except in the streets and public grounds of the city ; such beings the fair construction of the power, and the necessity for this police regu- lation not extending further.^ But there are decisions on this point which are the other way.* On the other hand, the right to require existing railroad cor- porations to fence their track, and to make them liable for all beasts killed by going upon it, has been sustained on two grounds : first, as regarding the division fence between adjoining proprie- tors, and in that view being but a reasonable provision for the fare and freight shall be annually fixed within the corporate limits would justify and published is legitimate as an exercise an ordinance entirely prohibiting the use of tlie police power. Railroad Co. v. Ful- of steam for propelling cars through any ler, 17 Wall. 560. For discussion of the part of tlie city. And see Great Western right of the State to fix rates, see post, pp. K. B. Co. v. Decatur, 33 HI. 381 ; Branson 786, 737, notes. It Is no impairment of v. Philadelphia, 47 Pa. St. 329 ; Whitson v. the obligation of the charter of a railroad Franklin, 34 Ind. 392. Affirming the company to pass laws to prevent extort general right to permit the municipalities tion and unjust discrimination. Illinois to regulate the speed of trains, see Chi- Cent. R. R. Co. v. People, 95 HI. 313 ; s. cago, &c. R. R. Co. «. Haggerty, 67 111. c. 1 Am. & Eng. R. R. Cas. 188. That the 113 ; Pennsylvania R. R. Co. v. Lewis, 79 issuing and taking up of tickets and coup- Fa. St. 33 ; Haas v. Chicago, &c. R. R. ons of tickets by common carriers may Co., 41 Wis. 44. That the legislature be regulated by statute, see Fry v. State, may compel railroad companies to carry 63 Ind. 552. impartially for all, see Chicago, &c. R. R. 1 Bailey v. Philadelphia, &o. R. R. Co., Co. v. People, 67 111. 11 ; Cincinnati, &c. 4 Harr. 389. Compare Commonwealth v. R. R. Co. v. Cook (Ohio), 6 Am. & Eng. Pa. Canal Co., 66 Pa. St. 41 ; s. c. 5 R. R. Cas. 317 ; Louisville, N. 6. & T. Am. Rep. 329. By. Co. v. State, 66 Miss. 662 ; but an " Washington Bridge Co. v. State, 18 act abrogating the requirement of Im- Conn. 53. partial carriage is void as to inter-state » State V. Jersey City, 29 N. J. 170.- transportation. The Sue, 22 Fed. Rep. * Crowley v. Burlington, &c. By. Co., 848. But if the carriage is of persons 65 Iowa, 668. See Merz v. Missouri P. from State to State, the State has no such Ry. Co., 88 Mo. 672. In Buffalo & Ni- control. Hall t». Be Cuir, 95 U. S. 485. agara Falls R. R. Co. v. Bufialo, 5 Hill, See Carton v. Illinois Cent. R. R. Co., 59 209, it was held that a statutory power in Iowa, 148 ; s. c. 6 Am. & Eng. R. R. Cas. a city to regulate the running of cars 305. See cases, post, pp. 717, 737. CH. XVI.] THE POLICE POWER OS THE STATES. 713 protection of domestic animals ; and second, and chiefly, as essen- tial to the protection of persons being transported in the railway carriages.^ ^Having this double purpose in view, the owner of beasts killed or injured may maintain an action for the damage suffered, notwithstanding he may not himself be free from negli- gence.2 But it would, perhaps, require an express legislative ^ Thorpe v. Butland & Burlington R. R. Co., 27 Vt. 140; New Albany & Salem R. B. Co. v. Tilton, 12 Ind. 3; Same v. Maiden, 12 Ind. 10; Same v, McNamara, 11 Ind. 643 ; Ohio & Mis- sissippi R. R. Co. V. McClelland, 26 111. 140 ; Madison & Indianapolis R. R. Co. V. Whiteneck, 8 Ind. 217; Indianapolis & Cincinnati B. R. Co. v. Townsend, 10 Ind. 38; Same v. Eercheval, 16 Ind. 84 ; Corwin v. N. T. & Erie R. E. Co., 13 K. Y. 42 ; Horn v. Atlantic & St. Law- rence B. B. Co., 85 N. H. 169, and 36 N. H. 440; Fawcett v. York & North Midland B. B. Co., 15 Jur. 173 ; Smith v. Eastern B. B. Co., 36 N. H. 356 ; Bulkley V. N. Y. & N. H. B. B. Co., 27 Conn. 479; Jones v. Galena, &c. B. E. Co., 16 Iowa, 6 ; Winona, &c. B. B. Co. v. Wal- dron, 11 Minn. 515; Bradley v. Buffalo, &c. R. B. Co., 84 N. Y. 429 ; Sawyer v. Vermont, &c. B. B. Co., 106 Mass. 196; Pennsylvania R. R. Co. v. Riblet, 66 Pa. St. 164; s. c. 5 Am. Rep. 860; Kan- sas Pacific R. B. Co. v. Mower, 16 Kan. 673; Wilder v. Maine Central B. B. Co., 65 Me. 332 ; Blewett v. Wyandotte, &o. B. B. Co., 72 Mo. 683. The Minne- sota statute imposes no duty toward chil- dren. Fitzgerald v. St. Paul, &c. By. Co., 29 Minn. 336. As to the degree of care required of railroad companies in keeping up their fences, compare Antisdel v. Chi* cago, &c. R. R. Co., 26 Wis. 145 ; Lem- mon V. Chicago, &c. R. R. Co., 32 Iowa, 151 ; Carey v. Chicago, &o. Ry. Co., 61 Wis. 71 ; Chicago, &c. R. R. Co. v. Barrie, 66 111. 226, and cases cited therein. It is competent to make the company liable for double the value of stock killed in con- sequence of the neglect to fence. Mis- souri Pao. Ry. Co. v. Humes, 115 U. S. 512 ; Harnett v. Railroad Co., 68 Mo. 56 ; s. c. 30 Am. Rep. 773 ; Spealman v. Rail- road Go., 71 Mo. 434; Tredway v. Railroad Co , 43 Iowa, 527 ; Little Rock, &c. R. R. Co. V. Payne, 33 Ark. 816 ; s. c. 34 Am. Rep. 56 ; Cairo, &o. R. R. Co. v. People, 92 111. 97; s. c. 34 Am. Rep. 112. Contra, Atchison, &c. B. R. Co. v. Baty, 6 Nev. 37; 8. c. 29 Am. Bep. 386. A much higher attorney fee than is allowed in other cases cannot be imposed by law in actions against a railroad for stock killing. Wilder v. Chicago & W, M. By. Co., 70 Mich. 382. Compare Peoria, D. & E. By. Co." V. Duggan, 109 HI. 637. A statute making railroad companies liable for injuries by fire communicated by their locomotive engines was sus- tained, as to companies previously in existence, in Lyman v. Boston & Wor- cester B. B. Co., 4 Cush. 288; Rode- macher v. Milwaukee, &c. R. R. Co., 41 Iowa, 297 ; s. c. 20 Am. Rep. 692 ; Gor- man V. Pacific Railroad, 26 Mo. 441. But a statute making a railroad liable for cat- tle killed irrespective of negligence is bad. Jensen v. Union Pac. Ry.Co., 21 Pac. Rep. 994 (Utah) ; Bielenberg v. Montana, &c. Ry. Co., 20 Pac. Rep. 314 (Mont ). And it is not competent to make railroad com- panies liable for injuries for which they are in no way responsible. It is therefore held that an act imposing upon railroad companies the expense of coroners' in- quests, burial, &c., of persons who may die on its cars, or be killed by collision, &c., is invalid as applied to cases where the company is not in fault. Ohio, &c; R. R. Co. V. Lackey, 78 111. 55. That it is as competent to lessen the common-law liabilities of railroad companies as to in- crease them, see Kirby v. Pennsylvania R. R. Co., 76 Pa. St. 606. And see Cam- den & Amboy R. R. Co. o. Briggs, 22 N.J. 623; Trice v. Hannibal, &c. R. R. Co., 49 Mo. 438. 2 Corwin ». N. Y. & Erie R. R. Co., 13 N. Y. 42 ; Indianapolis & Cincinnati R. R. Co. V. Townsend, 10 Ind. 38; Jef- fersonville, &c. R. E. Co. v. Nichols, 30 Ind. 321 ; Same v. Farkhurst, 34 Ind. 501; Suydam v. Moore, 8 Barb. 368; Fawcett v. York & North Midland R. Co., 15 Jur. 173 ; Waldron v. Belisselaer & Schenectady R. R. Co., 8 Barb. 390 ; Horn V. Atlantic & St. Lawrence R. B. 714 CONSTITUTIONAL LIMITATIONS. [CH. XVL declaration thd.t the Corporation should be liable for the beasts thus destroyed to create so great an innovation in the common law. The general rule, where a corporation has failed to obey the police regulations established for its goyeriiment, would not make the (Sorporatioa liable to the party injured, if his own neg- ligence contributed with that of the Corporation in producing tlie injury.y The State may also regulate the grade of railways, and pre- scribe how, and upon what grade, railway tracks shall Cross each other : and it may apportion the expense of making the neces* sary crossings between the corporations owliing the roads.^ And it may establish regulations requiring existing railways to ring the bell or blow the whistle of their engines immediately before passing highways at grade, or other places where their approach might be dangetous to travel,^ or to station flagmen at such or Co., 85 N. H. 169; O'Bannon v. Louis- ville, &c. B. B. Co., 8 Bush, 348 ; Illinoig Cent. R. R. Co. ». Arnold, 47 111. 173; Hinman v. Chicago, &a. R. B. Co., 28 loWa, 491; Quackenbtish o. Wisconsiiif &c. R. R. Co., 62 Wis. 411 ; Burlington & M. R. R. Co. V. Webb, 18 Neb. 215. 1 Jackson v. Rutland & Burlington R. B. Co., 25 Vt. 150. And see Marsh v. N. Y. & Erie B. E. Co., 14 Barb. 364; Joliet & N. I. B. B. Co. v. Jones, 20 III- 221 ; Tonawanda B. R. Co. v. Munger, 6 Denio, 255, and 4 N. Y. 349 ; Price v. New Jersey R. R. Co., 31 N. J. 229; Drake v. Philadelphia, &c. R. B. Co., 61 Fa. St. 240. In Indianapolis & Cincinnati R. B. Co. V. Kercheval, 16 Ind. 84, it was held that a clause in the charter of a railroad cor- poration which declared that when the Corporators should have procured a right of way as therein provided, they should be seised in fee-simple of the right to the land, and should have the sole use and oc- cupation of the saime, and no person, body Corporate or politic, should in any way interfere therewith, molest, disturb, oi: injure any of the rights and privileges thereby granted, &(!., would not take from the State the power to establish a police regulation making the corporation liable for cattle killed by their cars. ^ Fitchburg B. R. Co. v. Grand Junc- tion R. R. Co., 1 Allen, 552, and 4 Allen, 198 ; Pittsburgh, &c. R. R. Co. v. S. W. Pa. R. R. Co., 77 Pa. St. 178. They may be required to put up depots at railroad janotions. State v. Wabash, &c. Ry. Co., 83 Mo. 144. Part of the expense of changing grade to overhead crossings may be laid upon a town. Appeal of Westbrook, 57 Conn. 95. The legisla- ture may regulate thef speed at high- way and other crossings. Boekford, &c. R. R. Co. V. Hillmer, 72 lU. 235. " While the franchise of a railroad company li- censes generally nnlimited speed, power is reserved to the legislature to regu- late the exercise of the franchise for public security." Ryarii Oh. J., in Horn V. Chicago, &c. R. B. Co., 38 Wis. 463. The regulation is in favarem vitas. Haas V. Ohieago, &c. B. R. Co., 41 Wis. 44. But running at unlawful speed does not iniposean absolute liability. Louisville, N- O. & T. Ry. Co. v. Caster, 5 Sou. Rep. 388 (Miss.). ' " The legislature has the power, by general laws, from time to time, as the public exigencies may require, to regu- late corporations in their franchisesy so as to provide for the public safety. The provision in question is a mere police regulation, enacted for the protection and safety of the public, and in no manner interferes with or impairs the powers conferred on the defendants in their act of incorporation." Galena & Chicago U. R. R. Co. ». Loomis, 13 111. 548. And see Stuyvesant u. Mayor, &g. of New York, 7 Cow. 588 } Benson v. Mayor, &o of New York, 10 Barb. 223 ; Bulkley «, N. Y. & N. H. B. R. Co., 27 Conn, 489 Veazie w. Mayo, 45 Me. 560 ; b. o. 49 Me^ 156; Galena & Chicago U. R. R. Co. », CH, XVL] THE POLICE POWEE 01? THE STATES. 715 any other dangerous places.^ And it has even been intimated that it might be competent for the State to make railway corpo' rations liable as insurers for the safety of all persons carried by them, in the same manner that they are by law liable as carriers of goods ; though this would seem to be pushing the police power to an extreme.* But those statutes which hafe recently become common, and which give an action to the representatives of per- sons killed by the wrongful act, neglect, or default of another, may unquestionably be made applicable to corporations previously chartered, and may be sustained as only giving a remedy for a wrong for which the common law had failed to make provision.' And it cannot be doubted that there is ample power in the legis- lative department of the State to adopt all necessary legislation Dill, 22 111. 264 J Same ». Appleby, 28 111. 283; Ohio & Mississippi B. B. Co. v. McClelland, 25 111. 140 j Clark's Adm'r «. Hannibal & St. Jo. E. E. Co., 36 Mo. 202 ; Chicago, &c. E. E. Co. v. Triplett, 38 III. 482 ; Commonwealth v. Eastern E. B. Co., 103 Mass. 254 ; b. c. 4 Am. Bep. 555; Kaminitsky v. E. E. Co., 25 S., C. 53. 1 Toledo, &c. E. E. Co. v. Jacksonville, 67 111. 37 ; Western & A. E. E. Co. «. Young, 7 S. E. Eep.912 (Ga.). In many States now there are railroad commission- ers appointed by law, with certain powers of supervision, more or less extensive. Be- specting these it has been said in Maine : " Our whole system of legislative super- vision through the railroad commission- ers acting as a State police over railroads is founded upon the theory that the public duties devolved upon tailroad corporations by their charter are ministerial, and therefore liable to be thus enforced." Railroad Commissioners v. Portland, &c. R. B. Co., 63 Me. 269; s. c. 18 Am. Rep. 208. - Thorpe v. Entland & Burlington R. R. Cb., 27 Vt. 140. Carriers of goods are liable as insurers, notwithstanding they may have been guiltless of negli- gence, because such is their contract with the shipper when they receive his goods for transportation; but carriers of pef- sons assume no such obligations at the common law and where a company of iiidividnals receive front the State a char- ter which makes them carriers of persons, and chargeable as such for their own de- fault or negligence only, it may well be doubted if it be competent for the legisla- ture afterwards to impose upon their coH- tracts new burdens, and make them re- spond in damages where they have been guilty of no default. In other words, whether that could be a proper police regulation which did not assume to regu- late the business of the carrier with a view to the just protectiob of the ri|;ht8 and interests of others, but which im^ posed a new obligatioti, for the benefit of others, upon a party guilty of no neglect of duty. But perhaps such a regulation would not go further than that in Stanley j>. Stanley, 26 Me. 191, where it was held competent for the legislature to pass an act making the stockholders of existing banks liable fdr all corporate debts there- after created ; or in Peters v. Iron Moun- tain E. R. Co., 28 Mo. 107, and Grannahan d. Hannibal, &c. B. B. Co., 80 Mo. 546, where an act was sustained which made companies previously chartered liable for the debts of contractors to the workmen whom they had employed. ' Southwestern B. R. Co. v. Paulk, 24 Ga. 356; Coosa Biver Steamboat Co. v, Barclay, 30 Ala. 120. In Boston, Con- cord, and Montreal R. R. v. State, 32 N. H. 216, a statute making railroad cor- porations liable to indictment and fine, in case of the loss of life by the negligence or carelessness of the proprietors or theif servants, was adjudged constitutional, as applicable to corporations previously in existence. To an indictment or action under a like Massachusetts act contribu- tory negligence is no defence. Com. v. Boston, &c. R. R., 134 Mass. 211 ; Merrill V. Eastern R. R., 139 Mass. 252. 716 CONSTITUTIONAL LIMITATIONS. [CH. XVL for the purpose of enforcing the obligations of railway companies as carriers of persons and goods to accommodate the public im- partially, and to make every reasonable provision for carrying with safety and expedition.^ Restraints on Sale of Liquors. Those statutes which regulate or altogether prohibit the sale of intoxicating drinks as a bever- age have also been, by some persons, supposed to conflict with the federal Constitution. Such of them, however, as assume to regulate merely, and to prohibit sales by other persons than those who are licensed by the public authorities, have not suggested any serious question of constitutional power. They are but the ordinary police regulations, such as the State may make in re- spect to all classes of trade or employment.^ But those which undertake altogether to prohibit the manufacture and sale of intoxicating drinks as a beverage have been assailed as violating express provisions of the national Constitution, and also as sub- versive of fundamental rights, and therefore not within the grant of legislative power. That legislation of this character was void, so far as it affected imported liquors or such as might be introduced from one State into another, because in conflict with the power of Congress over coniimerce, was strongly urged in the License Cases before the Supreme Court of the United States ; but that view did not obtain the assent of the court. Opinions were expressed by a majority of the court that the introduction of imported liquors into a State, and their sale in the original packages as imported, could not be forbidden, because to do so would be to forbid what Con- ' Railroad employees may be required 504; Metropolitan Board of Excise v. to be examined to test their fitness^ and Barrie, 34 N. Y. 637 ; Goddard v. Jack- f or color-blindness. Smith u. Alabama, sonville, 15 111. 588 j Kettering r. Jackson- 124 U. S. 465 ; McDonald v. State, 81 Ala. ville, 50 III. 39 ; State v. AUmond, 2 HousL 279; Nashville, C. & St. L. By. Co. v. 612. That a territory may make such State, 83 Ala. 71 ; 128 U. S. 96. On this laws : Terr. v. Connell, 16 Pac. Bep. 209 subject in general, see Bedf. on Bailw. (Ariz.). That such laws may be applied c 32, sec. 2 ; Louisville, &c. B. B. Co. v. to corporations chartered to manufacture Burke, 6 Cold. 45 ; New Albany & Sa- liquors, as well as to others, see Coramon- lem B. B. Co. ti. Tilton, 12 Ind. 3; Buck- wealth v. Intoxicating Liquors, 115 Mass. ley o. N. Y. & N. H. B. B. Co.,27 Conn. 153; Beer Company t. Massachusetts, 97 479 ; Ohio & Mississippi B. R. Co. v. Mc- U. S. 25. That, wlien the prohibition is Clelland, 25 111. 140 ; Bradley v. Buffalo, total, even a druggist cannot sell as medi- &c. B. B. Co., .34 N. Y. 427 ; Boston, C. & cine on a physician's prescription, see M. B. B. Co. V. State, 32 N. H 215; Penn- Woods v. State, 36 Ark. 36; 8. c. 38 Am. sylvania B. B. Co. w. Riblet, 66 Pa. St. Rep. 22. Sales within certain hours may 164 ; 8. c. 5 Am. Bep. 360. And see other be forbidden. Hedderich v. State, 101 cases cited, ante, pp. 711, 712, notes Ind. 564. A farmer may be forbidden to 2 Bode V. State, 7 Gill, 326 ; Bancroft give cider on Sunday to an intoxicated V. Dumas, 21 Vt. 456 ; Thomasson o. person. Altenburg v. Com., 126 Pa. St. State, 15 Ind. 449; License Cases, 5 How. 602. CH. XVI.] THE POLICE POWER OF THE STATES. 717 gress, in its regulation of commerce, and in tlie levy of imposts, had permitted ; ^ but it was conceded by all, that when the origi- nal package was broken up for use or for retail by the importer, and also when the commodity had passed from his hands into the hands of a purchaser, it ceased to be under Congressional protec- tion as an import, or a part of foreign commerce, and became subject to the laws of the State, and might be taxed for State purposes, and the sale regulated by the State like any other property .2 It was also decided, in these cases, that the power of Congress to regulate commerce between the States did not ex- clude regulations by the States, except so far as they might come in conflict with those established by Congress ; and that, conse- quently, as Congress had not undertaken to regulate commerce in liquors between the States, a law of New Hampshire could not be held void which punished the sale, in that State, of gin pur- chased in Boston and sold in New Hampshire, notwithstanding the sale was in the cask in which it was imported, but by one not licensed by the selectmen.^ The authority of the License Cases is, however, seriously impaired by late decisions of the same court. Upon the principle, now well settled,* that the failure of Congress . to act as to matters directly affecting interstate commerce is equivalent to a declaration that it shall be free, it is held a State has no power to prevent the bringing of liquor into it from another State, and that it cannot prohibit the sale within it of liquor in the original package by a non-resident.^ But the manufacture of 1 TaneyyCh. J., 5 How. 504, 574; Mc- Metropolitan Board v. Barrie, 34 N. Y. Lean, J., 5 How. 589 ; Catron, J., 6 How. 657 ; Beer Company v. Massachusetts, 97 608. And see Brown v. Maryland, 12 U. S. 25 ; Jones v. Surprise, 64 N. H. 243 ; Wheat. 419; License Tax Cases, 5 Wall. Lang v. Lyncli, 38 Fed. Rep. 489; State 462; Cook v. Pennsylvania, 97 U. S. 566; v. Cobaugh, 78 Me. 401. In Iowa it is Tiernan v. Rinker, 102 U. S. 123 ; Lin- held competent to except from the gen- coln V. Smith, 27 Vt. 328, 335 : Bradford eral prohibition of the sale of wines all V. Stevens, 10 Gray, 379 ; State v. Robin- those made from fruit grown in the State, son 49 Me. 285. State v. Stucker, 58 Iowa, 496. But thi8„ '^Daniel, J., held that the right to seems not in harmony with Tiernan v. regulate was not excluded, even while Rinker, 102 U. S. 123. the packages remained in the hands of * See p. 595, note 3. the importer unbroken (p. 612). See also ^ Bowman v. Chicago & N. W. Ry. Co., the views of Grier, 3. (p. 631). 125 U. S. 465; Leisy v. Hardin, 10 S. C. » This rule has lately been followed Rep. 681. In the former case a majority in Iowa. Collins v. Hills, 77 Iowa, 181; of the court held that the statute could Leisy v. Hardin, 43 N. W. Rep. 188. See not be upheld as an inspection law nor as Waterbury v. Newton, 50 N. J. L. 534 ; a sanitary law ; that it was a regulation People V. Lyng, 42 N. W. Rep. 139 (Mich.), of commerce, although its purpose was to reversed in U. S. Sup. Ct., April, 1890. perfectthepolicy of the State as tointem- See also Bode v. State, 7 Gill, 326 ; Jones peraiice ; and left undecided the question V. People, 14 111. 196 ; State v. Wheeler, of the right of the State to forbid the sale 25 Conn. 290 ; Santo v. State, 2 Iowa, 165, of the liquor when imported. In the lat- 202; Commonwealth I'.Clapp, 5 Gray, 97; ter case this point is distinctly ruled, so 718 CONSTITUTIONAL LIMITATIONS. [CH. XVL intoxicating liquor within the State may be forbidden although intended solely for exportation.^ These State laws, known as Prohibitory Liquor Laws, the pur- pose of which is to prevent altogether the manufacture and sale of intoxicating drinks as a beverage, so far as legislation can accomplish that object, cannot be held void as in conflict with the fourteenth amendment.^ And in several cases it has been held that the fact that such laws may tend to prevent or may abso- lutely preclude the fulfilment of contracts previously made is no objection to their validity." Any change in the police laws, or indeed in any other laws, might have a like consequence. The same laws have also been sustained, when the question of conflict with State constitutions, or with general fundamental principles, has been raised. They are looked upon as police regulations established by the legislature for the prevention of intemperance, pauperism, and crime, and for the abatement of nuisances.* It has also been held competent to declare the liquor fai as the case of the sale by a foreigner or non-resident in the original package is concerned. For the State rulings upon it see cases p. 717, note 3, supra. After a railroad has stored such liquor in its warehouse for several days, it ceases to be a carrier and becomes amenable to the law. State v. Creeden, 43 N. W. Eep. 673 (Iowa). See also State v. O'Neil, 68 Vt. 140. 1 Kidd «. Pearson, 128 U. S. 1. « The manufacture of intoxicating liquors in a State is none the less a business withiij that State, because the manufacturer in- tends, at his convenience, to export such liquors to foreign countries or to other States." Lamar, J., p. 24. * If the State so determines, it may forbid the manufacture, sale, and use of liquor as pr^udicial to public health, safety and morals, even though thereby existing property is depreciated in value without compensation. Mugler v. Kan- sas, 123 U. S. 623 ; Kidd v. Pearson, 128 U. S. 1. See also Bartemeyer v. Iowa, 18 Wall. 129; Foster D.Kansas, 112 U. S. " 201 ; Prohibitory Am. Cases, 24 Kan. 700; Re Intox. Liquors, 25 Kan. 761; 8. o. 37 Am. Rep. 284. Nor is permis- sion for sale by druggists, and no others, class legislation. Id. See Beer Co. v. Massachusetts, 97 U. S. 26. » Peo|yie V. Hawley, 3 Mich. 330; Rey- nolds ». Geary, 26 Conn. 179. Contracts cannot hamper of impede the State power of police. Beer Company v. Massachu- setts, 97 U. S. 25. * Commonwealth v. Kendall, 12 Cugh. 414; Commonwealth v. Clapp, 5 Gray, 97 J Commonwealth v. Howe, 13 Gray, 26 ; Santo v. State, 2 Iowa, 202 ; Our House V. State, 4 Greene (Iowa), 172; ZumhofC V. State, 4 Greene (Iowa), 520; State v, Donehey, 8 Iowa, 396 ; State v, Wheeler, 26 Conn. 290; Reynolds v. Geary, 26 Conn. 179 . Oviatt v. Pond, 29 Conn, 479; People 0. Hawley, 3 Mich. 330 ; People V, Gallagher, 4 Mich. 244 ; Jones v. Peo- ple, 14 III. 196 ; State v. Prescott, 27 Vt. 194 ; Lincoln v. Smith, 27 Vt. 328 ; Gill V. Parker, 31 Vt. 610. Compare Beebe v. State, 6 Ind. 501 ; Meshmeier v. State, 11 Ind. 484 ; Wynehamer v. People, 13 N. Y. 378. See State v. Kennedy, 17 Atl. Rep. 51 (R. I.). So of local prohibitory laws. Whitney v. Township Board, 39 N. W. Eep. 40 (Mich.) ; State v. Berlin, 21 S. C. 292; Burnside v. Lincoln Co. Ct., 86 Ky. 423; Ex parte Campbell, 74 Cal. 20. The Territories may pass such laws. Terr. ». O'Connor, 41 K. W. Rep. 746 (Dak.) ; Terr. v. Guyot, 22 Pac. Hep. 134 (Mont.). But the mere keeping of liquor for another cannot be made a crime. State V. Gilman, 10 S. E. Rep. 283 (W. Va.). In Reynolds v. Geary, 26 Conn. 179; Jones v. Surprise, 64 N. H. 248; Lang V. Lynch, 88 Fed. Rep. 489, the State law forbidding suits for the pricQ of liquors sold out of the State to evade CH. XVI.] THE POLICE POWER OF THE STATES. 719 kept for sale a nuisance, and to provide legal process for its con- demnation and destruction, and to seize and condemn the build- ing occupied as a dram-shop on the same ground.^ And it is only where, in framing such legislation, care has not been taken to observe those principles of protection which surround the per- sons and dwellings of individuals, securing them against unrea- sonable searches and seizures, and giving them a right to trial befor? condemnation, that the courts have felt at liberty to de- clare that it exceeded the proper province of police regulation.^ Perhaps there is no instance in which the power of the legislature to make such regulations as may destroy the value of property, without compensation to the owner, appears in a more striking light than in the case of these statutes. The trade in alcoholic drinks being lawful, and the capital employed in it being fully protected by law, the legislature then steps in, and by an enact- ment based on general reasons of public utility, annihilates the traffic, destroys altogether the employment, and reduces to a nominal value the property on hand. Even the keeping of that, for the purposes of sale, becomes a criminal offence; and, with- out any change whatever in his own conduct or employment, the merchant of yesterday becomes the criminal of to-day, and the very building in which he lives and conducts the business which to that moment was lawful becomes the subject of Idgal proceed- ings, if the statute shall so declare, and liable to be proceeded against for a forfeiture.^ A statute which can do this must be the State law, was sust»ine3 and applied under the police power, and its operation notwithstanding the contract was* valid would not be an unlawful deprivation of where made. The general rule is, how- property. Devin v. Scott, 34 Ind. 67. ever, that if the contract is valid where ^ Hibbard v. People, 4 Mich. 125; made, it is valid everywhere. See Sort- Fisher v. MoGirr, 1 Gray, 1 ; State ». well ». Hughes, 1 Curtis, 244; Adams v. O'Neil, 58 Vt. 140; atde, 369, note. Com- CouUiard, 102 Mass. 167 ; Hill i>. Spear, pare Meshmeier ». State, 11 Ind. 484 ; 50 N. H. 253 ; Kling v. Fries, 33 Mich.- Wynehamer v. People, 13 N. Y. 378. 275 ; Roethke v. Philip Best Brewing Co., " See Mugler o. Kansas, 123 U. S. 623 j 38 Mich. 340; Webber v. Donnelly, 88 Kaufman ». Dostal, 73 Iowa, 691 ; Whit- Mich. 469. ney y. Township Board, 39 N. W. Rep. 1 American Fur Co. o. United States, 2 40 (Mich.); Tanner v. Alliance, 29 Fed. Pet. 358 ; Our House o. State, 4 Greene Rep. 196 ; Menken ti. Atlanta, 78 Ga. 658. (Iowa), 172 ; Lincoln v. Smith, 27 Vt. In a number of the States, statutes have 328 ; State v. Wheeler, 25 Conn. 290 ; recently been passed to make the owners Oviatt V. Pond, 29 Conn. 479 ; State v. of premises on which trafllc in intoxicat- Robinson, 33 Maine, 568; License Cases, ing liquors is carried on responsible for 5 How. 504 ; State u. Barrels of Liquor, all damages occasioned by such traffic. It 47 N. H. 869; Commonwealth «. Intoxi- is believed to be entirely competent for eating Liquors, 107 Mass. 396 ; Pearson the legislature to pass such statutes. V. Distill. Co., 72 Iowa, 348; Craig v. Bertholf w, O'Reilly, 74 N. Y. 500. But Werthraueller, 43 N. W. Rep. 606 (Iowa), wliether they can apply in cases where A statute providing for the appointment leases have previously been made must of guardians for drunkards is competent be a serious question. 720 CONSTITUTIONAL LIMITATIONS. [CH. XTL sustified upon the highest reasons of public benefit ; but, whether satisfactory or not, the reasons address themselves exclusively to the legislative wisdom. Taxing Forbidden Occupations. Questions have arisen in re- gard to these laws, and other State regulations, arising out of the imposition of burdens on various occupations by Congress, with a view to raising revenue for the national government. These bur- dens are imposed in the form of what are called license fees ; and it has been claimed that, when the party paid the fee, he was thereby licensed to carry on the business, despite the regulations which the State government might make upon the subject. This view, however, has not been taken by the courts, who have re- garded the congressional legislation imposing a license fee as only a species of taxation, without the payment of which the busi- ness could not lawfully be carried on, but which, nevertheless, did not propose to make any business lawful which was not lawful before, or to relieve it from any burdens or restrictions imposed by the regulations of the State. The licenses give no authority, and are mere receipts for taxes.^ Other Regulations affecting Commerce. Numerous other illus- trations might be given of the power in the States to make regu- lations affecting commerce, which are sustainable as regulations of police.^ Among these, quarantine regulations and health laws of every description will readily suggest themselves, and these are or may be sometimes carried to the extent of ordering the destruction of private property when infected with disease or otherwise dangerous.^ These regulations have generally passed 1 License Tax Cases, 5 Wall. 462 ; Pur- Cases, 5 How. 504, 632; Meeker v. Van vear v. Commonwealth, 6 Wall. 476 ; Com- Bennselaer, 15 Wend. 397. A liquor law monwealth b. Holbrook, 10 Allen, 200 ; may annul a previous license, and not be Block V. JacksonTille, 86 111. 301 ; Terr, invalid on that ground. See ante, p. 341, V. O'Connor, 41 N. W. Eep. 746 (Dak.), note. Under the police power, the deal- They are not contracts. Martin w. State, 36 ing in liquors even for lawful purposes N.W. Rep. 554 (Neb.) Nor does their pay- may be restricted to persons approved for ment preclude enforcement of penalties moral character. In re Ruth, 32 Iowa, for selling in the Indian country. United 250. Compare People v. UaUg, 37 N. W. States V. Forty-three Gallons of Whiskey, Rep. 21 (Mich.). 108 U. S. 491. A State may tax a busi- ^ As to the right to fix rates for rail- ness notwithstanding the State constitu- road transportation, see cases, pp. 737, tion forbids its being licensed. Young-- 1ZS,post. blood V. Sex'ton, 82 Mich. 406 ; s. c. 20 ' It is usual, either by general law or Am. Rep. 654. As to when license fees by municipal charters, to confer very are taxes, see ante, p. 243 and note. State extensive powers upon local boards of taxation does not forbid further municipal health, under which, when acting in good taxation for regulation. Wolf ». Lansingi faith, they may justify themselves in tak- 53 Micl). 867 ; Frankfort v. Aughe, 114 ing possession of, purifying, or even de- Ind. 77. Btroying the buildings or other property See remarks of Grier, J., in License of the citizen, when the public health or CH. XVI.] THE POLICE FOWEE 01' THE STATES. 721 unchallenged. The right to pass inspection laws, and to levy duties so far as may be necessary to render them effectual, is also undoubted, and is expressly recognized by the Constitution.'^ But certain powers which still more directly affect commerce may sometimes be exercised where the purpose is not to interfere with congressional legislation, but merely to regulate the times and manner of transacting business with a viiew to facilitate trad«, secure order, and prevent confusion. ' An act of the State of New York declared that the harbor- masters appoiaited under the State laws should have authority to regulate and station all ships and vessels in the istream of the East and North rivers, within the limits of the city of New York, and the wharves thereof, and to remove from time to time such vessels as were not employed in receiving and discharging their cargoes to make room for such others as rerquired to be more comfort demands such sis'ong measures, ing upon what constitutes a nuisance, See Harrison v. Baltimore, 1 Gill, 264; Van Wormer ». Albany, 15 Wend. 262; Coe V. Shultz, 47 Barb. 64 ; Baymond v. Fish, 51 Conn. 80. They may forbid offensive trades be- ing carried on in populous districts. Ex parte Shrader, 33 Cal. 279 ; Metropolitan Board v. Heister, 37 N. Y. 661; Live- Stock, &c. Association v. Crescent City, &c. Co., 16 Wall. 36 ; Wyneliamerw. Peo- ple, 13 N. Y. 378 ; Coe v. Shultz, 47 Barb. 64 ; Ashbrook v. Commonwealth, 1 Bush, 139; Taunton v. Taylor, llfi Mass. 254; Fertilizing Co. ». Hyde Park, 97 U. ,S. 659; Dillon, Mun. Corp. § 95 j Potter's Dwarris on Stat. 458. See State v. Board of Health, 16 Mo. App. 8. The disinfec- tion of all imported rags at the expense of the shipper may be required. Train V, Boston Disinfecting Co., 144 Mass. 623. That the business is lawful in itself, and proper to be carried on somewhere, is no Direction to the regulation. Water- town 0. Mayo, 109 Mass. 315 ; Beer Co. V. Masaajchusetts, 97 U, S. 25. If they forbid the keeping of swine in certain parts of a city, tlieir regulations will be presumed reasonable und needfuL Commonwealth v. Patch, 97 Mass. 221, citing with approval Pierce w. Bartrum, Cowp. 269. And th«ugh they cannot he veated with authority to decide finally upon one's right to property when they pcoceed to interfere with it as constitut- ing a danger to health, yet they are vested with quasi judicial power in decid and all presumptions favor their actions. See Van Wormer v. Albany, 15 Wend. 262; Kennedy w. Phelps, 10 La. Ann. 227; Metropolitan Board v. Heister, 37 il. Y. 661 ; Eaymond v. Fish, 51 Conn. 80. And they may unguestionaUy be "vested with very large power to establish pest- houBes, and make very stringent regula- tions to prevent tlie spread of contagious diseases. As to the power of the public authorities to establish a public slaughter- house, or to require all slaughtering of beasts to be done at one establisliment, see Milwaukee v. Gross, 21 Wis. 241; Live Stock, &c. Association u. Crescent City, &e. Co., 16 Wall, 36. Compare, as to right to establish monopolies. Gale v. Kalamazoo, 23 Mich. 344. The license of a board of Iiealth is not a defence to an indictment for a nuisance. Garrett v. 'State, 49 N. J. L. 94. A regulation forbidding the growing of rice within a city, on the ground of m- jurious effect upon health, was held valid in Green v. Savannah, 6 Ga. 1. 1 Art. 1, § 10, clause 2. See Turner V. Maryland. 107 U. S. 38; Hospes v. O'Brien, 24 Fed. Eep. 145. A prohibi- tion of the sale of meat unless inspected by State officers twenty-four hours before the slaughter of the animal is vtiid as excluding dressed beef brought from other States. Minnesota v. Barber, TJ. S. Sup. Ct., May, 1890. Swift v. Sntphin, 39 Fed. Rep, 630; In re Christian, /rf. 636; Ex parte Kieffer, 40 Fed. Eep. 399. 46 722 CONSTITUTIONAL LIMITATIONS. [CH. XVI. immediately accommodated, for the purpose of receiving and dis- charging theirs ; and that the harbor-masters or either of them should have authority to determine how far and in what instances it was the duty of the masters and others, having charge of ships or vessels, to accommodate each other in their respective situa- tions ; and it imposed a penalty for refusing or neglecting to obey the directions of the harbor-masters or either of them. In a suit brought against the master of a steam vessel, who had refused to move his vessel a certain distance as directed by one of the harbor-masters, in order to accommodate a new arrival, it ■was insisted on the defence that the act was an unconstitutional invasion of the pow6r of Congress over commerce, but it was sustained as being merely a regulation prescribing the manner of exercising individual rights over property employed in commerce.^ V (The line of distinction between that which constitutes an inter- ference with commerce, and that which is a mere police regula- tion, is sometimes exceedingly dim and shadowy, and it is not to be wondered at that learned jurists differ when endeavoring to classify the cases which arise. ) It is not doubted that Congress has the power to go beyond the general regulations of commerce which it is accustomed to establish, and to descend to the most 1 Vanclerbilt v. Adams, 7 Cow. 849, 851. Woodworth, J., in this case, states very clearly the principle on which police regulations, in such cases, are sustaina- l)Ie : " It seems to me the power exer- cised in this case is essentially necessary for the purpose of protecting the rights of all Concerned. It is not, in the legitimate sense of the term, a violation of any right, but the exercise of a power indispensably necessary, where an extensive commerce is carried on. If the harbor is crowded with vessels arriving daily from foreign parts, the power is incident to such a state of things. Disorder and confusion would be the consequence, if there was no control. . . . The right assumed un- der the law would not be upheld, if ex- erted beyond what may be considered a necessary police regulation. The line between what would be a clear invasion of right on the one hand, and regulations not lessening the value of the right, and calculated for the benefit of all, must be distinctly marked. . . , Police regula- tions are legal and binding, because for the general benefit, and do not proceed to the length of impairing any right, in the proper sense of that term. The sover- eign power in a community, therefore, may and ought to prescribe the manner of exercising individual rights over prop- erty. It is for the better protection and enjoyment of that absolute dominion which the individual claims. The power rests on the implied right and duty of the supreme power to protect all by statutory regulations ; so that, on the whole, the benefit of all is promoted. Every public regulation in a city may, and does in some sense, limit and restrict the absolute right that existed prevlgusly. But this is not considered as an injury. So far from it, the individual, as well as others, is supposed to be benefited. It may, then, be said that such a power is inci- dent to every well-regulated society, and without which it could not well exist." See Cooley v. Board of Wardens, 12 How. 299 ; Owners of the James Gray v. Owners of the John Frazer, 21 How. 184; Ben- edict V. Vanderbilt, 1 Robertson, 194; Steamship Co. v. Joliffe, 2 Wall. 450; Wil- son V. McNamee, 102 U. S. 572; Port Wardens v. The Ward, 14 La. Ann. 289 ; Oilman v. Philadelphia, 8 Wall. 718, 731 ; Cisco V. Roberts, 86 N. Y. 292. CH. XTT.] THE POLICE POWER OF THE STATES. 723 minute directions, if it shall be deemed advisable ; ^ and that to whatever extent ground shall be covered by those directions, the exercise of State power is excluded. Congress may establish police regulations, as well as the States ; confining their opera- tion to the subjects over which it is given control by the Constitu- tion.2 But as the general police power can better be exercised under the supervision of the local authority, and mischiefs are not likely to spring therefrom so long as the power to arrest collision resides in the national courts, the regulations which are made by Congress do not often exclude the establishment of others by the State covering very many particulars. Moreover, the regulations of commerce are usually, and in some cases must be, general and uniform for the whole country ; while in some localities. State and local policy will demand peculiar regulations with reference to special and peculiar circumstances. The State of Maryland passed an act requiring all importers of foreign goods, by the bale or package, &c., to take out a license, for which they should pay fifty dollars, and, in case of neglect or refusal to take out such license, subjected them to certain forfeit- ures and penalties. License laws are of two kinds ; those which^ require the payment of a license fee by way of raising a revenue, I and are therefore the exercise of the power of taxation ; and those \ which are mere police regulations, and require the payment only I of such license fee as will cover the expense of the license and of ) enforcing the regulation.^ The Maryland act seems to fall prop- erly within the former of these classes, and it was held void as in conflict with that provision of the Constitution which prohibits a State from laying any impost, &c., and also with the clause which declares that Congress shall have the power to regulate com- merce. The reasoning of the court was this : Sale is the object of all importation of goods, and the power to allow importation 1 Gloucester Ferry Co. v. Pennsyl- 465. The same principle applies to an vania, 114 U. S. 215. act requiring an examination of railroad*^ 2 See, for the distinction between the employees for color blindness, to be paid general regulation of commerce, which for by the railroad company. Nashville, is under the exclusive control of Congress, C. & St. L. Ry. Co. o. Alabama, 128 U. and the local regulations which are mere S. 96. Contra, as to payment by the corn- aids to commerce, and are generally left pany. Louisville & N. R. R. Co. v. Bald- to the States, Mobile v. Kimball, 102 U. S. win, 5 Sou. Rep. 311 (Ala.). Sunday 691, per Field, J., and cases, pp. 595, trains may be forbidden by a State. 596, ante. A State law may require all State v. Railroad Co., 24 W. Va. 783. locomotive engineers to be examined and See also W. U. Tel. Co. v. Mayor, 38 Fed. licensed, even those engaged in inter-state Eep. 552. transportation. Such a law imposes no * Ash v. People, 11 Mich. 347. See burden upon inter-state commerce, and is ante, p. 243. Also Dillon. Mun. Corp. valid in the absence of congressional reg- §§ 291-294 and notes, ulation. Smith v. Alabama, 124 U. S. 724 CONSTITUTIONAL LIMITATIONS. [CH. XVL must thefefore imply the power to authorize the sale of the thing imported ; that consequently a penalty inflicted for selling an ar^ tide in the character of importer was in opposition to the act of Congress, which authorized importation ; that a power to tax an article in the hands of the importer the instant it was landed was the same in effect as a power to tax it whilst entering the port ; that consequently the law of Maryland was obnoxious to the charge of unconstitutionality, on the ground of its violating the tw. Compare Port Huron v. Jenkinson,43N. W. Rep. 923 (Mich.). In Pennsylvania it has been held competent to require the owners of city lots, in front of which sew- ers are constructed, to pay the expense thereof in uroportion to the street front. Philadelphia v. Tryon, 35 Pa. St. 401; Stroud V. Philadelphia, 61 Pa. St. 255. And see Boston ». Shaw, 1 Met. 130 ; Hil- dreth v. Lowell, 11 Gray, 345 ; Cone v. Hartford, 28 Conn. 863 ; State f. Jersey City, 5 Dutch. 441. * See especially the case of Godard, Petitioner, 16 Pick. 504, for a clear and strong statement of the grounds on which such legislation can be supported. Also Dillon, Mun. Corp. § 637 ; Cooley on Taxation, 398. In Illinois it seems not to be competent to compel the building of sidewalks or the keeping of them free of snow by the owners of abutting lots under the police power. Ottawa v, Spencer, 40 111. 211 ; Gridley v. Bloom- ington, 88 111. 554, 8.c. 30 Am. Rep. 566. * Lorman v Benson, 8 Mich. 18 ; Mor- gan ». King, 18 Barb. 277. CH. XVI.] THE POLICE POWER OF THE STATES. 727 there has been a very general disposition to consider all streams public which are useful as channels for commerce wherever they are found of suflScient capacity to float to market the products of the mines, of the forests, or of the tillage of the country through which they flow.^ And if a stream is of sufficient capacity for the floating of rafts and logs in the condition in which it generally ap- pears by nature, it will be regarded as public, notwithstanding there may be times when it becomes too dry and shallow for the purpose. " The capacity of a stream, which generally appears by the nature, amount, importance, and necessity of the business done upon it, must be the criterion. A brook, although it might carry down saw-logs for a few days, during a freshet, is not there- fore a public highway. But a stream upon which and its tribu- taries saw-logs to an unlimited amount can be floated every spring, and for the period of from four to eight weeks, and for the distance of one hundred and fifty miles, and upon which unquestionably many thousands will be annually transported for many years to come, if it be legal so to do, has the character of a public stream for that purpose. So far the purpose is useful for trade and com- merce, and to the interests of the community. The floating of logs is not mentioned by Lord Hale [in De Jure Maris], and prob- ably no river in Great Britain was, in his day, or ever will be, put to that use. But here it is common, necessary, and profitable, especially while the country is new ; and if it be considered a law- ful mode of using the river, it is easy to adapt well-settled prin- ciples of law to the case. And they are not the less applicable because this particular business may not always continue ; though If it can of necessity last but a short time, and the river can be used for no other purpose, that circumstance would have weight in the consideration of the question." ^ But if the stream was 1 Brown v. Chadbourne, 31 Me. 9j Homoohitto River v. Withers, 29 Miss. Knox V. Chaloner, 42 Me. 160 ; Lancey v. 21 ; Rhodes v. Otis, 33 Ala. 578 ; Walker Clifford, 54 Me. 487 ; Gerrish v. Brown, v. Allen, 72 Ala. 456 ; Little Rock, M. 51 Me. 256 ; Scott v. Willson, 3 N. H. 321 ; &o. Ry. Co. „. Brooks, 39 Ark. 403 ; Mc- Shaw V. Crawford, 10 Johns. 236 ; Man- Manus v. Carmicbael, 3 Iowa, 1 ; Weise Bon V. Hungerford, 6 Barb. 265 ; Browne ■ v. Smith, 3 Oreg. 445 ; s. c. 8 Am. Rep. V. Scofleld, 8 Barb, 239 ; Morgan v. King, 621. 18 Barb. 284 ; 30 Barb. 9, and 35 N. Y. « Morgan v. King, 18 Barb 288 ; Moore 454 ; Cates v. Wadlington, 1 McCord, 580 ; v. Sanborne, 2 Mich. 619 ; Brown v. Chad- Commonwealth 0. Chapin, 5 Pick. 199 ; bourne, 31 Me. 9 ; Treat v. Lord, 42 Me. Moore v. Sanborne, 2 Mich. 519 ; Lorman 562 ; Weise i-. Smith, 3 Oreg. 445 ; s. c. V. Benson, 8 Mich. 18 ; Depew v. Board 8 Am. Rep, 621 : Buck! v. Cone, 6 Sou. of Commissioners, &c., 5 Ind. 8 ; Board of Kep. 160 (Fla.) ; Gaston v. Mace, 10 S. E. Commissioners V. Fidge, 5 Ind. 13; Stuart Rep. 60 (W. Va.). Compare Hubbard v. V. Clark, 2 Swan, 9 ; Elder v. Barnes, 6 Bell, 64 111. 110 ; Haines v. Hall, 20 Pac. Humph. 358 ; Dalrymple v. Mead, 1 Rep. 831 (Oreg.). Grant's Cases, 197; Commissioners of 728 COmSTITUTIONAL LIMITATIONS., [CH. XVI. not thus useful in its natural condition, but haa been remiered susceptible of use by the labors of the owner of the soil, the right of passage will be in the nature of a primte way, and the public do not acquire a right to the benefit of the owner's labor, unless he sees fit to dedicate it to their use.^ All navigable waters are fosr the use of all the citizens; and there cannot lawfully be any exclusire private appropriation of any portion of them.^ The question what is a navigable stream would seem to be a mixed question of law and fact ;* and though it is said that the legislature of the State may detearmine whether a stream shall be considered a public highway or not,* yet if in fact it is not one, the legislature cannot make it so by simple declarar tion, since, if it is private property, the legislature cannot appro priate it to a public use without providing far compeni^tion.^ The general right to control and regulate the public use of navigable waters is unquestionably in the State; but there are certain restrictions upon this right groiwing out of the power of Congress over commerce. Congress is empowered to regulate commerce with foreign nations and among the several States ; and wherever a river forms a highway upon which commerce is conducted with foreign nations or between States, it must fall under the control of Congress, under this power over commerce^ The circumstance, however, that a stream is navigablCy and capable of being used for foreign or inter-stalB commerce, does noti exclude regulation by the State, if in fact Congress has not exercised its power in regard to it ; ^ or having exercised it, the State law does 1 Wadswotth's Adm'r v. Smith, 11 Me. MoCuUooh, 10 Mass. 70 ; State v. Moffett, 278 i Ward b. Warner, 8 Mich. 608. 1 Greene (Iowa), 247 ; Selman a. Wolfe, ' Commonwealtli v: Chasrlestown, 1 27 Tex. 68 ;: Larson e. I'urtong, 63 W>9. Pick. 180 ; Kean o. Stetson, 5 Pick. 492 ; 323. Arnold v. Mundy, 6 N. J. 1 j Bird », Smith, » See Treat v. Lord, 42 Me. 562 ; Weise 8 Watts, 434. One cannot acquire a pre- v. Smith, 3 Oreg. 446 ; s. c. 8 Am. Rep. soriptire right to impede floatage. Cot- 621 ; Olive v. States 86 Ala. 8R ling V, Howardi, 18 Atl. Rep. 794 (N. H.).. * Glover v. P&well, 10 N. J. Eq. 211 ; They are equally for the use of the pub- American River Water Co. v. Amsdten, lie in the winter when covered with ice j 6 CaL 443 ; Baker v. Lewis, 33 Pa. St. and one who cuts a hole iii' the ice in an 301. accustomed way, by means of which one ^ Morgan v. King, 18 Barb. 284 ; si. a passing upon the ice is injured, has been 36 N. Y. 464. held liable to an aetioa for the injury. « Willson v. Black Bird Creek Marsh French v Camp, 18 Me. 433. But this Co., 2 Pet 245. In this case it was held rule is now modified, at least as to t^e that a State law permitting a creek navi- Penobscot at Bangor, upon the ground gable from the sea to be dammed so as to that the right of ice harvesting is at such exclude vessels altogether, was not op» a place superior to that of travel. Wood- posed to the Constitution of the United man v. Pitman, 79 Me. 466. An obstrue. States, there being no legislation by Con- tion to a navigable stream is a nuisance gress with which it would come in con^ which any one having occasion to use it flict. And see Wheeling Bridge Case, 13 may abate. Inhabitants of Arundel v. How. &18^ and 18 How. 421. By the oi>. CH. XVI.) THE POLICE POWEE OF THE STATES. 72t not come in conflict with the congressional regulations, or inter- fere with the rights which are permitted by them. The decisions of the federal judiciary in regard, to navigable waters seem to have settled the fallowing points: — 1. That no State can grant an exclusive monopoly for the navi- gation of any portion of the waters within its limits upon wliich commerce is carried on under coasting licenses granted under the authority of Congress/ since such a grant would come directly in conflict with the power which Congress has exercised. But a State law granting to an individual an exclusive right to navigate the upper waters of a river, lying wholly within the limits of the State, separated from tide water by falls impassable for purposes of navigation, and not forming a part of any continuous track o£ commerce between two or more States, or with a foreign country, does not come witliin the reason of this decision, and cannot be declai-ed void as opposed to the Constitution of the United States.^ dmance of 1787 and the enabling acts passed at the admission of several States, it was provided that navigable waters within them should be "common high- ways and forever free." This has been repeatedly held to refer not to physteal obstructions but to the imposition of du- ties for the right to navigate them, that is, to political regulations hamperiYig the freedom of commerce. Cardwell v. Amer. Bridge Co., 113 U. S. 205; Hamilton v. Vicksburg., &c. R. K. Co., 119 U. S. 280; Huse V. Glover, W. 543 ; Sands v. Man- istee R. Imp. Cb., 123 TJ. S 288; Willam- ette Iron B. Co. v. Hatch, 126 U. S. 1. In the last case, Bradley, J , says ; " The clause in question cannot be regarded as establishing the police power of the United States over the rivers of Oregon^ or as giving to the federal courts the right to hear and determine, according to fed- eral law, every complaint that may be made of an impediment in^ or an ea- croachment upon, the navigation of those rivers. We do not doubt that Congress, if it saw ftt, could thus assume tiiecareof said streams, in the interest of foreign and inter-state commerce ; we only say tliat, in our opinion, it has not done so by the clause in question. And although, until Congress acta, the States have the plenary power supposed, yet when Con- gress chooses to act, it is not concluded by anything -that the States have doae from assuming entire control of the mat- ter, and abating any erections that may have been made, and preventing any oth- ers from being made exceptin conformity with such regulations as it may impose." 1 Gibbons v. Ogden, 9 Wheat. 1. The case was the well-known historical one, involving the validity of the grant by the State of New York to Robert Fulton and his associates of the exclusive right to navigate the waters of that State with vessels propelled by steam. This subject is further considered in Gilman v. Fliila- delphia, 3 Wall. 718 ; and in The Daniel Ball, 10 Wall. 557, in which the meaning of the term " navigable waters of the United States " is defined. And see Craig V KHne, 65 Pa. St. 399 ,- s. c. 3 Am. Rep. 636. 2 Yeazie v. Moor, 14 How. 668. The exclusive right granted in this case was to the navigation of the Penobscot River above Old Town, which was to continue for twenty years, in consideration of im» provements in the navigation to be made by the grantees. Below Old Town there were a fall and several dams on the river, rendering navigation from the sea impos- siblei And see McReynolds v. Small- bouse, 8 Bush, 447. It is no infraction of the public right for a city to permit in- dividuals to put up sheds upon its piers, thereby excluding the general public, in furtherance of commerce'. People v. Baltimore, &c. R. R. Co., 117 N. Y. 150. 730 CONSTITUTIONAL LIMITATIONS. [CH. XVL 2. The States have the same power to improve navigable waters which they possess over other highways ;i and where money has been expended in making such improvement, it is competent for the State to impose tolls on the commerce which passes through and has the benefit of the improvement, even where the stream is one over which the regulations of commerce extend.* 3. The States may authorize the construction of bridges over navigable waters, for railroads as well as for every other species of highway, notwithstanding they may to some extent interfere with the right of navigation.^ If the stream is not one which is subject to the control of Congress, the State law permitting the erection cannot be questioned on any ground of public inconve- nience. The legislature must always liave power to determine what public ways are needed, and to what extent the accommoda- tion of travel over one way must yield to the greater necessity for another. But if the stream is one over which the regulations of Congress extend, the question is somewhat complicated, and it becomes necessary to consider whether such bridge will inter- fere with the regulations or not. But the bridge is not neces- sarily unlawful, because of constituting, to some degree, an obstruction to commerce, if it is properly built, and upon a proper plan, and if the general traffic of the country will be aided rather than impeded by its construction. There are many cases where a bridge over a river may be vastly more important than the navigation ; and there are other cases where, although the traffic upon the river is important, yet an inconvenience caused by a bridge with draws would be much less seriously felt by the public, and be a much lighter burden upon trade and travel, than a break in a line of railroad communications necessitating the employment 1 The improvement of a stream by Morris v. State, 62 Tex. 728; Com'rs State authority will give no right of ac- Sinking Fund v. Green, &c. Nav. Co., 79 tion to an individual incidentally injured Ky. 73. by the improvement. Zimmerman v. s gee Commonwealth v. Breed, 4 Pick. Union Canal Co., 1 W. & S. 346. See 460; Depew v. Trustees of W. and E. Thunder Bay, &c. Co. v. Speechley, 31 Canal, 5 Ind. 8 ; Dover v. Portsmouth Mich. 3.36. Bridge, 17 N. H. 200 ; Illinois, &c. Co. v. 2 Huseu. Glover, 119 U.S. 543; Sands Peoria Bridge, 38 111. 467. Under the V. Manistee River Imp. Co., 123 U. S. Wisconsin Constitution a stream wholly 288 ; Palmer v. Cuyahoga Co., 3 McLean, within the State may not be completely 226 ; Kellogg ». Union Co., 12 Conn. 7 ; obstructed : Sweeney v. Chicago, &c. Ry. Thames Bank v. Lovell, 18 Conn. 500; Co., 60 Wis. 60; but one between it McReynolds v. Smallhouse, 8 Bush, 447 ; and Minnesota may be temporarily, by Illinois, &c. Co. v. Peoria Bridge, 38 111. authority of the latter State. Keator 467 ; Benjamin b. Manistee, &c. Co., 42 L. Co. v. St. Croix B. Corp., 72 Wis. Mich. 628 ; Nelson v. Cheboygan Nav. 62. Co., 44 Mich. 7 ; s. c. 38 Am. Rep. 222 ; CH, XVI.] THE POLICE POWER OF THE STATES. 731 of a ferry. In general terms it may be said that the State may authorize such constructions, provided they do not constitute material obstructions to navigation ; but whether they are to be regarded as material obstructions or not is to be determined in each case upon its own circumstances. The character of the structure, the facility afforded for vessels to pass it, the relative amount of traffic likely to be done upon the stream and over the bridge, and whether the traffic by rail would be likely to be more incommoded by the want of the bridge than the traffic by water with it, are all circumstances to be taken into account in deter- mining this question. It is quite evident that a structure might constitute a material obstruction on the Ohio or the Mississippi, where vessels are constantly passing, which would be unobjection- able on a stream which a boat only enters at intervals of weeks or months. The decision of the State legislature that the erec- tion is not an obstruction is not conclusive ; but the final deter- mination will rest with the federal courts, who have jurisdiction to cause the structure to be abated, if it be found to obstruct unnecessarily the traffic upon the water. Parties constructing the bridge must be prepared to show, not only the State authority, and that the plan and construction are proper, but also that it accommodates more than it impedes the general commerce.^ 4. The States may lawfully establish ferries over navigable waters, and grant licenses for keeping the same, and forbid un- licensed persons from running boats or ferries without such license. This also is only the establishment of a public way, and it can make no difference whether or not the water is entirely 1 See this subject fully considered in v. Amer. Bridge Co., 113 U. S. 205 ; Ham- the Wheeling Bridge Case, 13 How. 618, ilton v. Vicksburg, &c. R. K. Co., 119 See also Columbus Insurance Co. v. U. S 280 ; Escanaba Co. v. Cliicago, 107 Peoria Bridge Co., 6 McLean, 70; Same U. S. 678; Willamette Iron B. Co. v. V. Curtenius, 6 McLean, 209; Jolly, o. Hatch, 125 U. S. 1. In this last case, a Terre Haute Drawbridge Co., 6 McLean, quotation from which is on p. 729, supra, 237; United States v. New Bedford though the decision is carefully limitedlo Bridge, 1 W. & M. 401; Commissioners the case involved, — a river wholly with- of St. Joseph Co. V. Pidge, 5 Ind. 13. in the State of Oregon, but leading to a It is, perhaps, doubtfnl in view of late port of entry,— the ruling in the Wheeling decisions of the same court whether the Bridge Case is also closely limited to the Wheeling Bridge Case, involving the facts arising in it, and the c!|se at bar dis- Ohio River, is to be given as broad an tinguished. In the Wheeling case, it is effect as has sometimes been supposed, said the court applied principles of inter- It has several times since its decision national law, and passed on tlie force of been held that, in the absence of federal a pre-constitutional compact of Virginia, regulation, a bridge may be built under and from the decision no inference is to State authority across a river wholly be drawn that the courts of tlie United ■within it, though it be capable of use in States claim autliority to regulate all inter-state commerce and such use is bridges below ports of entry, and to treat thereby materially obstructed. Cardwell all State legislation in sucli cases as void- 73% CONSTITUTIONAL LIMITATIONS. [CH. XVL within the State, or, on the other hand,, is a highway for inter-state or foreign commerce.^ 5. The States may also authorize the construction of dams across navigable waters ; and where no question of federal au- thority is involved, the legislative permission to erect a dam will, exempt the structure from being considered a nuisance,^ and it would seem also that it must exempt the party constructing it from liability to any private action for injury to navigation, so long as he keeps within the authority granted, and is guilty of no negligenee.3 6. To the foregoing it may be added that the State has the, same power of regulating the speed and general conduct of ships or other vessels navigating its water highways, that it has to regulate the speed and conduct of persons and vehicles upon the ordinary highway ; subject always to the restriction that ita regulations must not come in conflict with any regulations es- tablished by Congress for foreign commerce or that between the States.* Levees and Drains. Where, under legislative authority, the construction of levees and embankments is required, to protect from overflow and destruction considerable tracts of country, assessments are commonly levied for the purpose on the owners 1 Conway w. Taylor's Ex'r, 1 Black, 2 Willson v. Black Bird Creek Marsh 603 i Wiggins Ferry Co. v. East St. Louis, Co., 2 Pet. 245 ; Brown «. Commonwealth, 107 U. S. 365 i Chilvers v People, 11 3 S. & R. 273 ; Bacon u. Arthur, 4 Watts, Mich. 43 ; Marshall v. Grimes, 41 Miss. 487; Hogg v. Zanesville Co., 5 Ohio, 410 j 27. In these cases the State license law Neaderhouser v. State, 28 Ind. 257. And was sustained as against a vessel enrolled see Flanagan v. Philadelphia, 42 Pa. St. and licensed under the laws of Congress. 219 ; Depew v. Trustees of W. & E. And see Fanning v. Gregorie, 16 How. Canal, 5 Ind. 8 ; Woodlaurn v. Kilbourne 524. But the State may not tax the cap- Manuf. Co., ] Bissell, 546 ; s. c. 1 Abb. ital stock of a ferry company of another U. S. 158; Hinchman o. Patterson, && State, whose only business within the E. E. Co., 17 N. J. Eq. 75; Stoughton ». former State is discharging and receiving State, 5 Wis. 291. persons and property passing between the » See Bailey v. Philadelphia, &cl E. R. States. Gloucester Ferry Co. t. Pennsyl- Co. 4 Harr. 389; Boush ». Walter, 10 vania, 114 U. S. 196. Under a power to Watts, 86 ; Parker v. Cutler Mill Dam amend the charter ofa ferry company, the Co., 21 Me. 853; Zimmerman ». Union ' legislature may regulate the tolls charge- Canal Co., 1 W. & S. 346 ; Depew v. able by it. Parker v. Metropolitan, &o. R. Trustees of W. & E. Canal, 5 Ind. 8. E. Co., 109 Mass. 606. Ferry rights may * People tx. Jenkins, 1 Hill, 469 ; Peo- be so regulated as to rates of ferriage, and pie v. Eoe, 1 Hill, 470. As to the' righir ferry franchises and privileges so con- of regulation in general, see Harrigan v. trolled in the hands of grantees and les- Lumber Co., 129 Mass. 580; s. o. 37 Am. sees, that they shall not be abused to the Bep, 387. As to the right to regulate serious detriment or inconvenience of fisheries in navigable waters, see Gentile the public. Where this power is given v. State, 29 Ind. 409; Phipps v. State, 22 to a municipality, it may be recalled at Md. 380; People v. Reed, 47 Barb. 2'85- any time. People v. Uayor, &c. of New Drew v. Hilliker, 56 Vt. 641 ; Chambers York, 32 Barb. 102. „. Church, 14 R. L 398. CH. xvl] the police powek of the states. 73'3 of lands lying on or near the Streams or bodies of water from vrhicli the danger is anticipated. But if the construction should be imposed as a duty upon residents or property owners in the neighborhood, so that they should be compelled to turn out peri- odically or in emergencies, and give personal attention and labor to the construction of the necessary defences against overflow and inundation, it is not perceived that there could be any difficulty in supporting such a regulation as one of police, or of resting it upon the same foundations which sustain the regulations in cities, by which duties are imposed on th« occupants of buildings to take certain precautions against fires, not for their own protection ex- clusively, but for the protection of the general public* Laws im- posing on the owners the duty of draining large tracts of land which in their natural condition are unproductive, and are a source of danger to health, may be enacted under the same power,* though in general the taxing power is employed for the purpose ; ^ and sometimes land is appropriated mider the eminent domain.* Regvilations of OivU Mights and Privileges. Congress, to give full effect to the fourteenth amendment to the federal Oomstitu- tion, passed an act in 1875, which provided that all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facili- ties, and privileges of inns, public conveyances on land and water, theatres and other places of public amusement, subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any pre- 1 Cooley on Taxation, 401, 402. See Bryant ». "Robbins, 70 Wis. 258; Don- State V. Newark, 27 N. J. 185, 194, per nelly v. Decker, 58 Wis. 461. It is com- Elmer^ J. ; Crowley v. Copley, 2 La. Ann. peteot to require a lot-owner to fill up at 329. In Pennsylvania it has been held his own expense a lot which otherwise that the State cannot, as a measure of would become a nuisance. Niokerson v. police, compel the owner of lands bounded Boston, 1-31 Mass. 306. on inland tide-water to construct embank- * Rieeves v. Treasurer of Wood Go , 8 ments to exclude the natural flow of the Ohio St. 833 ; Sessions i>. Crunkilton, 20 water, but that where the State constructs Ohio St. 349; Egyptian Levee Co. a. them at its own expense, and leaves them Hardin, 27 Mo. 495 ; McGehee v. Mathis, in possession of the owner, it may impose 21 Ark. 40 ; Yeatman v. Crandall, 11 La. on him the duty of repair. Philadelphia Ann. 220 ; Scuffletown Fence Co. v. Mc- o. Scott, 81 Pa. St. 80. Allister, 12 Bush, 312; Davidson ». THev 2 See State v. City Conncil of ChanleB- Orleans, 96 U. S. 97. ton 12 Rich. 702, 733; Wwts v. Hoag- * Commissioners who are empowered land, 114 U. S. 606. The taking of to straighten a river to protect a country property for drainage puiiposes is in the against inundation are not liable person- exercise of this power. Winslow v. ally for "incidental injuries to individuals. Winslow, 95 N. C. 24. Under it the cost Neither is there any claim against the of such an improvement made by the pub- public. Green v. Swift, 47 Crf. '536; lie authorities may be imposed upon the Green v. State, 73 Oal. 29. property benefited according to benefits. 734 CONSTITUTIONAL LIMITATIONS. [CH. XVI. vious condition of servitude.^ As the general power of police is in the States, and not in the federal government, the power of Congress to make so sweeping a provision may possibly be brought in question ; ^ but as the States have undoubted right to legislate for the purpose of securing impartiality in the accommodations afforded by innkeepers and common carriers, and as the pro- prietors of theatres and other places of public amusement are always subject to the license and regulation of the law, a cor- responding enactment by the State would seem to be compejient, and has been sustained as a proper regulation of police.^ r^ Regulation of Business .Charges. In the early days of the com- / mon law it was sometimes thought necessary, in order to prevent extortion, to interfere, by royal proclamation or otherwise, and establish the charges that might be exacted for certain com- modities or services. The price of wages was oftener regulated than that of anything else, the local magistrates being generally allowed to exercise authority over the subject. The practice was followed in this country, and prevailed to some extent up to the time of independence. Since then it has been commonly supposed that a general power in the State to regulate prices was incon- ' sistent with constitutional libertyj It has nevertheless been con- ce3ed that in some cases this might be done, and the question of the bounds to legislative power has been made prominent in what are known as the Chicago Warehouse Cases. The legisla- ture of Illinois, on the supposition that warehouse charges at Chicago were excessive and unfair, undertook to limit them to a maximum. They also required warehousemen to take out licenses and observe various regulations, which are not important here, and imposed certain penalties for a refusal to observe the stat- ute. The validity of the legislation was affirmed by the State court, which overruled various objections made on constitutional grounds, among which was, that in effect it deprived warehouse- men of their property without due process of law. The ware- housemen denied wholly the right of the legislature to prescribe charges for private services, or for tlie use of private property, and it was urged by them that, if admitted at all, no bounds could 1 Laws of 1875, c. 114. of municipal law for the regulation of ' In 1883 tlie act was held unconstitu- private rights ; but to provide modes of tional. The Fourteenth Amendment, redress against the operation of State says Bradley, J., does not " invest Cour laws and the action of State officers, ex- gress with power to legislate upon sub- ecutive and judicial, when these Kts jects which are within the domain of subversive of the fundamental rights State legislation, but to provide modes of specified in tlie amendment." Civil relief against State legislation or State Bights Cases, 109 U. S. 3. action of the kinds referred to. It does ° Donnell v. State, 48 Miss. 661. not authorize Congress to create a code CH. XVI.] THE POLICE POWER OF THE STATES. 735 be set to it. The court, in sustaining the power, placed it upon the same ground with the right to regulate the charges of hack- men, draymen, public ferrymen, and public millers.^ The case being removed to the federal Supreme Court, the decision of the State court was affirmed, and the principle fully approved. The ground of the decision appears to be that the employment of these warehousemen is a public or quasi public employment ; that their property in the business is " affected with a public interest," and thereby brought under that general power of control which the State possesses in the case of other public employments. Says Mr. Chief Justice Waite: "Under these powers the gov- ernment regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, &c., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. To this day statutes are to be found in many of the States upon some or all these subjects, and we think it has never yet been successfully contended that such legislation came within any of the constitu- tional prohibitions against interference with private property." ^ Some of the cases here referred to seem plain enough. Ferries are public highways, and when individuals are permitted to es- tablish them, tliey are allowed the sovereign prerogative of char- ging and collecting tolls ; and tolls can never be taken except by permission of the State, which generally ought to and does pre- scribe their limits. A hackman exercises a public employment in the public streets ; one which affprds peculiar opportunities for impositions and frauds, and requires special supervision, insomuch that it is commonly thought necessary to prohibit one making himself such except with permission of the State, and the numbe^^ is sometimes limited so as in effect to give special privileges. The rates of toll, when mills grind for toll, are usually fixed by law ; but there is nothing exclusive in this : the parties may make their own bargains, and the legislative rate only controls where the parties by implication have apparently acted in refer- ence to it. In England, formerly, the lords of manors, as mill- 1 Munn V. People, 69 HI. 80. In this dissented. This case is followed in New case, Justices McAllister and Scott dis- York with reference to the grain eleva- gented. tors at Buffalo. People v Budd, 117 « Munn V. Illinois, 94 U. S. 113, 125. N. Y. 1, two judges dissenting. In this case, Justices Field and Strong 736 CONSTITUTIONAL LIMITATIONS. [CH. XVI. 0-wnera, had exclusive rights ; and -where an exclusive right exists in one's favor, to compel the public to deal with hun, there can be no doubt of the right in the State to compel him to deal fairly with the public. Such a right existed in the English warehouse case of AUnutt v. IngUs,i j^ which the Court of King's Bench denied the right of the warehousemen to fix their own charges at discretion, when the public, under exclusive privileges which the warehousemen possessed, were compelled to deal with them.^ What circnmstances shall affect property with a public interest is not very clear. The mere fact tliat the public have an interest in the existence of the business, and are accommodated by it, cannot be sufficient, for that would subject the stock of the mer- chant, and his charges, to public regulation. The public have an interest in every business in which an individual offers his wares, his mierchandise, his services, or his accommodations to the pub- lic ; but his offer does not place him at the mercy of the public in respect to charges and prices. If one is permitted to take upon himself a publie employment, with special privileges which only the State can confer upon him, the case is clear enough; and it seems to have been the view of both courts in this case, that the circumstances were such as to give tiie warehousemen in Chicago, wiho were the only persons affected by the legislation, a " virtual " monopoly of the business of receiving and forwarding the grain of the eoamtry to and from that important point, and by the very fact of monopoly to give their business a public character, affect the property in it with a public interest, and render regula- tion of charges indispensable.^ ^ 12 East, 527. to render aecessaiy the recognition of the 2 In Munn v. Peojyle, 69 111. 80, 91, iprinciple that there Is and can be no limit Chief Justice Breeae, in speaking of the to legislative interference font such ag power to "make all needful rules and legislative discretion from time to time regulations respecting the use and enjoy- may prescribe. ment of property," speaks of familiar in- " See what is said by Breese, Ch. J., in stances in wliich the exercise of it in the 69 III. 88-89, and by Waiie, Ch. J., in 94 State has been unquestioned, and among U. S. 131. In Attorney-General t;. Chi- ihem, " in delegating power to municipal cago, &c. R. R. Co., 85 Wis. 425, 589, Chief bodies to regulate charges of haekmen Justice Ryan, in his very able opinion af- and draymen, and the weiglit and price firming the right to fix railroad charges of bread." Regulating the weight of by amendment to charters which reserved bread is common, and necessary to pre- the power of amendment, intimated de- vent imposition ; but regulating the price cided views in favor of the authority un- of bread vre should suppose would now der the general power of police. That meet with such resistance anywhere, as right would probably be claimed on the would require a distinct determination ground that railroads receive special pri vi- upon its constitutional rightfulness. How leges from the State ; the eminent domain the baker can have the price of that which being always employed in their favor, and he sells prescribed for him, and not the sometimes the power of taxation, merchant or the day-laborer, is not ap- The question of the power of the State parent. Indeed, to admit the power seems legislature to regulate the charges of CH. XVI.] THE POLICE POWER OP THE STATES. 737 The phrase " affected with a public interest " has been brpught into recent discussions from the treatise Be Portihus Maris of Lord Hale, where the important passage is as follows : " A man for his points outside ; but in Feik v. Chicago, &c. B. R. Co., 94 U. S. 164, it was decided tliat the State had power to prescribe a maximum of cliarges to be made by rail- common carriers for the transportation of persons and property within the State, is fully determined in the affirm- ative by tlie decisions of the federal Supreme Court. In Railroad Company V. Fuller, 17 Wall. 560, an act was sustained which provided, 1. That each railroad company should annually, in a month named, fix its rates for the trans- portation of passengers and freights : 2. That it should on the first day of the next month cause a printed copy of such rates to be put up in all its stations and depots, and to be kept up during the year ; 3. That the failure to comply with these requirements, or the charging of a higlier rate than was posted, should subject the offending company to penalties. In the warehouse case of Munn v. lUipois, 94 U. S. 113, the power to limit charges was directly involved, and was affirmed, as it was in Chicago, &c. R. R. Co. v. Iowa, 94 U. S. 155. The State may limit the amount of charges for transportation, provided such regulation does not amount to a taking of property by compelling car- rying without reward, unless restrained by contract in the charter. But the charter power to fix rates does not for- bid such regulation. Railroad Com. Cases, 116 U. S. 307 ; Dow v. Beidelman, 125 U. S. 680 ; Georgia R. R. & B. Co. v. Smith, 128 U. S. 174 ; Pennsylvania R. B. Co. ». Miller, 132 U. S. 75. The charges for business done wholly within the State may thus be regulated although a road affected may run through several States. Railroad Com. Cases, supra. The reason- ableness of charges is a judicial question. A State cannot empower a commission to fix rates finally without opportunity for a judicial hearing on the question of their reasonableness. Chicago, M. & St. Paul Ry. Co. V. Minnesota, U. S. Sup. Ct., March, 1890. But in Camden, &c. R. R. Co. ii. Briggs, 22 N. J. 623, and Phila. &c. R. R. Co. I'. Bowers, 4 Houst. 506, it was held that there was no power to regulate rates where no such authority was reserved in the charter ; and see cases at end of note. In these cases no question arose of the application of the power to contracts for transportation through the State, or from or to points within a State and other road companies, not only for transport- ing persons or property within the State, but also persons or property taken up outside the State and brought within it, or taken up inside and carried without. Note was made in the case that Congress had established no regulation with which the State statute would conflict. But this case is substantially overruled as to this point by Wabash, St. L. & P. Ry. Co ». Illinois, 118 U. S. 557, where the Illmois statute forbidding a greater charge for a shorter than for a longer haul in the same direction was held inapplicable to the case of a continuous voyage from a point within to a point without the State, as an interference with inter-state com- merce. Like rulings have been made in several cases. Carton v. III. Centr. R. R, Co., 59 Iowa, 148 ; State v. Chicago, &c. Ry. Co., 70 Iowa, 162 ; Com. v. Housa- tonic R. R., 143 Mass. 264 ; Hardy w. Atchison, &c. R. R. Co., 32 Kan. 698. Nor may the State control rates between two points within it, if the transit is in part through another State. State v. Chicago, &c. Ry. Co., 40 Minn. 267 ; Stern- berger v. Railroad Co., 7 S. E. Rep. 836 (6a. ). See Cotton Exchange v. Ry. Co., 2 I. S. C. R. 375. Contra, Com, v. Lehigh V. R. R. Co., 17 Atl. Rep. 179 (Pa.). See Gulf, C. & S. F. Ry. Co. i-. State, 10 S. W. Rep. 81 (Tex.). See further Providence Coal Co. v. Prov. & W. R. R. Co., 15 E. I. 303 ; Chi- cago, M. & St. P. Ry. Co. V. Becker, 32 Fed. Rep. 849 ; Parker o. Metropolitan R. R. Co., 109 Mass. 506 ; People v. Bos- ton, &c. R. R. Co., 70 N. Y. 569 ; Chicago &c. B. R. Co. V. People, 67 III. 1 ; Rug- gles V. People, 91 111. 256; Fuller ». Chicago, &c. R. R. Co., 31 Iowa, 188; Council Bluffs w. Kansas City, &c. R. R. Co., 45 Iowa, 338 ; Attorney-General v. Railroad Companies, 35 Wis. 425 ; Peik V. Chicago, &c. R. R. Co., 6 Biss. 177; Blake «. Winona, &c. R. R. Co., 19 Miun. 418 ; 8. 0. 18 Am. Rep. 345 ; s. c. in error, 94 U. S. 180 ; Chicago, &c. R. R. Co. u. Aokley, 94 U. S. 179. 47 738 CONSTITUTIONAL LIMITATIONS. [CH. XVL own priyate advantage may, in a port or town, set up a wharf or crane, and may take what rates he and his customers can agree for cranage, wharfage, housellage, pesage ; for he doth no more than is lawful for any man to do, viz., makes the most of his own. If the king or subject have a public wharf unto' which all per- sons that come to that port must come and unlade or lade their goods as for the purpose, because they are the wharves only licensed by the queen, or because there is no other wharf in that port, as it may fall out where a port is newly erected ; in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, pesage, &c., neither can they be enhanced to an immoderate rate ; but the duties must be reasonable and mod- erate, though settled by the king's license or charter. For now the wharf, crane, and other conveniences are affected with a public in- terest, and they cease to be juris privati only ; as if a man set out a street in new building on his own land ; it is now no longer bare private interest, but is affected by a public interest." If the case of a street thrown open to the public is an apt illustration of the public interest Lord Hale had in mind, the in- terest is very manifest. It will be equally manifest in the case of the wharf, if it is borne in mind that the title to the soil under navigable water in England is in the Crown, and that wharves can only be erected by express or implied license, and can only be made available by making use of this public property in the soil. If, then, by public permission, one is making use of the public property, and he chances to be the only one with whom the public can deal in respect to the use of that property, it seems entirely reasonable to say that his business is affected with a public interest which requires him to deal with the public on reasonable terms. In the following cases we should say that property in business was affected with a public interest : 1. Where the business is one the following of which is not of right, but is permitted by the State as a privilege or franchise. Under this head would be com- prised the business of setting up lotteries, of giving shows, &c., of keeping billiard-tables for hire, and of selling intoxicating drinks when the sale by unlicensed parties is forbidden ; also the cases of toll-bridges, &c. 2. "Where the State, on public grounds, renders to the business special assistance, by taxation or other- wise. 3. Where, for the accommodation of the business, some special use is allowed to be made of public property or of a public easement. 4. Where exclusive privileges are granted in con- sideration of some special return to be made to the public. Pos- sibly there may be other cases. Miscellaneous Cases. It would be quite impossible to enumerate CH. XVI.] THE POLICE POWER OF THE STATES. 739 all the instances in which the police power is or may be exercised, because the various cases in which the exercise by one individual of his rights may conflict with a similar exercise by others, or may be detrimental to the public order or safety, are infinite in num- ber and in variety. And there are other cases where it becomes necessary for the public authorities to interfere with the control by individuals of their property, and even to destroy it, where the owners themselves have fully observed all their duties to their fellows and to the State, but where, nevertheless, some control- ling public necessity demands the interference or destruction. A strong instance of this description is Where it becomes necessary to take, use, or destroy the private property of individuals to pre- vent the spreading of a fire, the ravages of a pestilence, the ad- vance of a hostile army, or any other great public calamity.^ Here the individual is in no degree in fault, but his interest must yield to that " necessity " which " knows no law." The establish- ment of limits within the denser portions of cities and villages, within which buildings constructe(^ of inflammable materials shall not be erected or repaired, may also, in some cases, be equivalent to a destruction of private property ; but regulations for this pur- pose have been sustained notwithstanding this result.^ Wharf lines may also be established for the general good, even though they prevent the owners of water-fronts from building out on soil which constitutes private property.* And, whenever the legisla- ture deem it necessary to the protection of a harbor to forbid the removal of stones, gravel, or sand from the beach, they may es- tablish regulations to that effect under penalties, and make them applicable to the owners of the soil equally with other persons^ Such regulations are only " a just restraint of an injurious use of property, which the legislature have authority " to impose.* 1 Saltpetre Case, 12 Coke, 18 ; Mayor, t» appropriation by military authorities, &c. of New York v. Lord, 18 Wend. 126 j see Harmony v. Mitchell, 1 Blatch. 549; Russell V. Mayor, &c. of New York, 2 8. c. in error, 13 How. 116. Denio, 461 ; Sorocco v. Geary, 3 Cal. 69 ; ^ Respublica ». Duquet, 2 Yeates, 493 S Hale V. Lawrence, 21 N. J. 714 ; Ameri- Wadleigh v. Gilman, 12 Me. 403 ; s. c. 28 canPrintWorksu. Lawrence, 21 N.J. 248 J Am. Deo. 188; Brady v. Northwestern Meeker v. Van Rensselaer, 15 Wend. 397 ; Ins. Co., 11 Mich. 426 ; Monroe v. Hoff- McDonaldw. Redwing, 13 Minn. 38; Phila- man, 29 La. Ann. 651; 8. c. -29 Am. Rep. delphia v. Scott, 81 Pa. St. 80 ; Dillon, 845 ; King ». Davenport, 98 111. 305 ; s. c. Mnn. Corp. §§ 756-759. And see Jones .38 Am. Rep. 89 ; Klingler v. Bickel, 117 V. Richmond, 18 Gratt. 617, for a case Pa. St. .826; McCloskey v. Kreling, 76 where the municipal authorities pur- Cal. 511. See cases, aUe, p. 245, note, chased and took possession of the liquor ^ Commonwealth v. Alger, 7 Cush. 53. of a city about to be occupied by a cap- See Hart v. Mayor, &c. of Albany, 9 turing military force, and destroyed it to Wend. 671 ; s. c. 24 Am. Dec. 165. prevent the disorders that might be an- * Commonwealth v. Tewksbury, 11 ticipated from free access to intoxicating Met. 65. A statute which prohibited the drinks under the circumstances. And as having in possession of game birds after 740 CONSTITUTIONAL LIMITATIONS. [CH. XVI. So a particular use of property may sometimes be forbidden, where, by a change of circumstances, and without the fault of the owner, that which was once lawful, proper, and unobjectionable has now become a public nuisance, endangering the public health or the public safety. Mill-dams are sometimes destroyed upon this ground ; ^ and churchyards which prove, in the advance of urban population, to be detrimental to the public health, or in danger of becoming so, are liable to be closed against further use for cemetery purposesi.^ The keeping of gunpowder in unsafe quantities in cities or villages ; ^ the sale of poisonous drugs, unless labelled; allowing unmuzzled dogs to be at large when danger of hydrophobia is apprehended ; * or the keeping for sale a certain time, though killed within the lawful time, was sustained in Phelps v. Racey, 60 N. Y. 10. But suuh statute is held in Michigan not to corer a case where the birds were killed out of the State. People ... O'Neil, 39 N. W. Rep. 1. That the State may prohibit the sale of arms to minors, see State v. Callicut, 1 Lea, 714. 1 Miller v. Craig, 11 N. J. Bq. 175. And offensive manufactures may he stopped. Coe V. Schultz, 47 Barb. 64. Public wells may be filled up. Ferrenbach v. Turner, 86 Mo. 416. See League v. Journeay, 26 Tex. 172 ; ante, p. 719, and cases cited in note. 2 Brick Presbyterian Church v Mayor, &o. of New York, 5 Cow, 638 ; Coates v. Mayor, &c. of New York, 7 Cow. 604; Kincaid's Appeal, 66 Pa. St. 411; s. o. 5 Am. Rep. 377. As to the general power of regulation of places of burial, see Woodlawn Cemetery o. Everett, 118 Mass 354; Lake View w. Rose Hill Cem- etery Co., 70 111. 191 ; Upjohn v. Board of Health, 46 Mich. 542. And see ante, pp. 24.5, 720, 721, notes. The legislature may authorize a municipal corporation to remove the dead from a cemetery within it. Craig V. First Presb. Church, 88 Pa. St. 42 ; s. c. .32 Am. Rep. 417. 8 Foote V. Fire Department, 5 Hill, 99 ; Williams v. Augusta, 4 Ga. 509 ; Daven- port 0. Richmond, 81 Va. 636. And see License Cases, 5 How. 504, 589, per McLean, J.; Fisher v. McGirr, 1 Gray, 127, per Shaw, Ch. J. * Moray v. .Brown, 42 N. H. 373; Washington v. Meigs, 1 MacArthur, 53. Dogs, which are animals in which the owner has no absolute property, are sub- ject to such regulations as the legislature may prescribe, and it is not unconsti- tutional to authorize their destruction, without previous adjudication, when found at large without being licensed and collared according to the statutory regular tion. Blair v. Forehand, 100 Mass. 136 ; State V. Topeka, 36 Kan. 76. And see Carter v. Dow, 16 Wis. 298; Morey v. Brown, 42 N. H. 373 ; Ex parte Cooper, 8 Tex. App. 489 ; s. c. 30 Am. Rep. 152. As a measure of internal police, the State has the power to encourage the keeping of sheep, and to discourage the keeping of dogs, by imposing a penalty upon the owner of a dog for keeping the same. Mitchell V. Williams, 27 Ind. 62. Or by imposing a dog tax for a fund to indem- nify sheep owners for losses suffered from dogs. Van Horn v. People, 46 Mich. 183. A person may be forbidden to keep more than two cows within a certain part of a city. In re Linehan, 72 Cal. 114. A law proliibiting the bringing of Texas and Cherokee cattle into the State be- cause of the tendency to communicate a dangerous and fatal disease to other cat- tle, was sustained in Yeazel v. Alexander, 58 III. 254. It has since, however, been questioned, and in Railroad Company v. Husen, 95 U. S. 465, such an act was held to be an invasion of the power of Congress over inter-state commerce. See also Hall «. De Cuir, 95 U. S. 485. But a statute is valid which makes one who has in his possession in Iowa Texas cattle, which have not wintered in the North, liable for damage done by them to other cattle. Kimmish v. Ball, 129 U. S. 217. See Missouri Pac. Ry. Co. v. Finley, 38 Kan. 660. CH. XVI.] THE POLICE POWEK OF THE STATES. 741 unwholesome provisions, or other deleterious substances, — are all subject to be forbidden under this power.* And, generally, it may be said that each State has complete authority to provide for the abatement of nuisances, whether they exist by the fault of individ- uals or not,2 and even though in their origin they may have been permitted or licensed by law.® ^ The manufacture and sale of any oleaginous substance designed to take the place of butter may be forbidden, though it is healthful and marked " oleomargar- ine butter." Such provision is a yalid exercise of the police power. Powell v. Pennsylvania, 127 U. S. 678, affirming 114 Pa. St. 265; Butler v. Chambers, 36 Minn. 69. So of the sale of oleomar- garine colored to deceive. Waterbury v. Newton, 50 N. J. L. 534. In New York an act like the Pennsylvania statute was held bad as prohibiting an industry be- cause it competed with another. People V. Marx, 99 N. Y. 377. But a later act was sustained, as aimed to prevent deception, which forbade the sale of a like product made in imitation or semblance, or de- signed to take the place of natural butter. People V. Arensberg, 105 N. Y. 123. Oleo- marganne may be required to be stamped : Pierce u. Maryland, 63 Md. 592 ; or col- ored pink. State v. Marsliall, 15 Atl. Rep. 210 (N. H.). The sale of milk below a certain standard of purity may be forbid- den, though it be mixed with pure water. Com. V. Waite, 11 Allen, 264 ■, People i>. Cipperly, 101 N. Y. 634 ; State v. Camp- bell, 64 N. H. 402; State v. Smyth, 14 R. I. 100. The sale of fertilizers may be regulated to prevent deception. Steiner V. Ray, 84 Ala. 93. 2 See Miller v. Craig, 11 N. J. Eq. 175 ; Weeks ». Milwaukee, 10 Wis. 242 ; Watr ertown v. Mayo, 109 Mass. 315. One of the powers most commonly conferred upon municipal corporations is that to declare and abate nuisances. The gen- eral authority is commonly given to the common council or other legislative body, but so far as the nuisances are supposed to be injurious to the public health, juris- diction in respect to them is likely to be conferred upon boards of health. Where nuisances are spoken of in statutes dele- gating this authority, public nuisances must be understood as intended, and for whatever is merely a private nuisance in- dividuals must seek their own remedy. The delegation of this authority over nuisances is very apt to raise troublesome questions, and the authority itself is likely to be taken to be broader than it is. It is first to be understood that nothing is a public nuisance which the law itself — either common or statute — authorizes. Pittsburgh, &c. R. R. Co. v. Brown, 67 Ind. 45; s. c. 33 Am. Rep. 73; Cliicngo, &c. R. R. Co. V. Joliet, 79 111. 25. And therefore if the municipal authority should assume to declare something which was entirely lawful by the law of the Stale to be a nuisance, the declaration would be a mere nullity because in conflict with the superior law., An illustration is found in a case where a city declared the occupa. tion by a railroad company of certain grounds where it had been lawfully lo- cated to be a nuisance, and forbade its longer continuance. Chicago, &c. R. R- Co. V. Joliet, 79 111. 25. Whether any par- ticular thing or act is or is not permitted by the law of the State must always be a judicial question, and tlierefore the ques- tion what is and what is not a public nuisance must be judicial, and it is not ^ competent to delegate it to the local legis- lative or administrative boards. Yates . «. Milwaukee, 10 Wall. 497 ; Wreford v. People, 14 Mich. 41 ; State v Street Com- missioners, 36 N. J. 283 ; Everett v. Coun- cil Bluffs, 46 Iowa, 66 ; Hutton v. Camden, 39 N. J. 122 ; s. c. 23 Am. Rep. 203 ; St. Louis V. Scbnuckelberg, 7 Mo. App. 536. The local declaration that a nuisance ex. ists is therefore not conclusive, and the party concerned may contest the fact in the courts. Ex parte O'Leary, 65 Miss. » See Beer Company v. Massachusetts, 97 U. S. 25 ; Fertilizing Co. v. Hyde Park, 97 IT. S. 659; ante, p. 341, and note; Mugler v. Kansas, 123 U. S. 623; Davenport v. Richmond, 81 Va. 636. 742 CONSTITUTIONAL LIMITATIONS. [CH. XVI. The state has also a right to determine what employments shall be permitted, and to forbid those which are deemed prejudicial to the public good. Under this right it forbids the keeping of gam- bling houses, and other places where games of chance or skill are played for money, the keeping for sale of indecent books and pic- 80 ; Hennessy v. St. Paul, 37 Fed. Rep. 566. There being no charter power to declare a nuisance, an ordinance declar- ing dense smoke a nuisance is void. St. Paul ». GilflUan, 36 Minn. 298. So as to a prohibition of all lime-kilns in a city : State V. Mott, 61 Md. 297 ; and of all laun- dries. In re Sam Kee, 31 Fed. Rep. 680. All picnics cannot be made nuisances. Poyer v. Des Plaines, 18 111. App. 225. In Kennedy v. Board of Health, 2 Pa. St. 366, it was held competent for the legisla- ture to make such local declaration con- clusive ; but this seems questionable. It is entirely competent, however, to confer upon the municipalities the authority to supersede the general law in respect to those matters which are found to be in- jurious in their locality, and to create as to them a new class of public offences. Thus, under proper legislation, a muni- cipal council may make the selling of spirituous liquors within their jurisdic- tion a nuisance : Goddard ». Jacksonville, 15 111. 688 ; or the selling of goods on Sunday . McPherson v. Chebanse, 114 III. 46 ; or the keeping of a bowling alley for hire : Tanner v. Albion, 5 Hill, 121 ; or an offensive manufactory : Kennedy v. Phelps, 10 La. Ann. 227 ; or a slaughter- house within certain specified limits : Metropolitan Board of Health v. Heister, 37 N. Y. 661 ; or a private hospital : Milne V. Davidson, 5 Mart. u. s. 409; s. c. 16 Am. Dec. 189 ; or the erection of wooden buildings : King :;. Davenport, 98 111. 305; or the running at large of swine : Roberts V. Ogle, 80 111. 459 ; Whitfield v. Longest, 6 Ired. 268 ; Crosby u. Warren, 1 Rich. 886; or the unreasonable occupation of public waters : Tourne v. Lee, 8 Mart. N. 8. 548; 8. c. 20 Am. Dec. 260; or the use of steam as motive power for cars in the streets : North Chicago C. R. Co. v. Lake View, 105 III. 207 ; or the emitting of dense smoke in the city : Harmon v. Chicago, 110 III. 400. And if in any of these cases there was doubt whether what was forbidden was not a nuisance at the common law, the municipal declaration would, as to the future, resolve the doubt, but could not operate retrospectively. If a municipal corporation proceeds to abate a nuisance, it possesses for that purpose only the rights of any private person, and if injury results to an individual, it must justify its action by showing that a nui. sance existed in fact. Wood on Nuisances, §§ 738, 739 ; Welch i;. Stowell, 2 Doug. (Mich.) 332; Brightman v. Bristol, 65 Me. 426; 8. c. 20 Am. Rep. 711; Mayor of Americus e. Mitchell, 79 Ga. 807. But a municipal corporation may order the re- moval of a nuisance at the expense of the person creating or responsible for it. Sa- lem V. Eastern B. R. Co., 98 Mass. 431. And this is frequently done in the case of city lots which are a nuisance in their natural condition, nr have become so by the act or neglect of the owner. The municipal order for removal is conclusive : Baker e. Boston, 12 Pick. 421 ; s. c. 22 Am. Dec. 421 ; though when it is to be done at the cost of the owner he is not concluded as to the cost by the action of the corpora- tion, but has a right to be heard as to the items : Salem v. Eastern R. R. Co., 98 Mass. 431 ; and in Kentucky on the ques- tion of nuisance. Joyce v. Woods, 73 Ky. 886. If the corporation is itself chargeable with creating the nuisance, the cost of abating it cannot be imposed upon the owner. Weeks v. Milwaukee, 10 Wis. 242; Hannibal t>. Richards, 82 Mo. 330. See Banning v. Commonwealth, 2 Dnv. 96. If it has expressly permitted it, it can abate only after a judicial de- cision. Everett v. Marquette, 53 Mich. 450. The abatement must be made by the removal of that in which the nuisance consists. King' v. Rosewell, 2 Salk. 459 ; Ely V. Supervisors of Niagara, 36 N. V. 297 ; State v. Keenan, 6 R. I. 497 ; Miller V. Birch, 32 Tex. 208. And it must be done without inflicting unnecessary in- jury. Babcock v. Buffalo, 56 N. Y. 268 ; Weil V. Ricord, 24 N. J. Eq. 169. See Fer- guson V. Selma, 43 Ala. 398 ; and on tlie subject in general. Fertilizing Go. v. Hyde Park, 97 U. S. 669. CH. XVI.] THE POLICE POWER OF THE STATES. 743 tares, the keeping of houses of prostitution, and the resort thereto, and in some States the sale of intoxicating drinks as a beverage.^ These several kinds of business have a tendency vrhich is injuri- ous and demoralizing ; and this tendency is recognized even in States where they are not forbidden, and , they are subjected to regulations with a view to reducing their evils to a minimum. The regulation is likely to take the form of a license, for which a fee is exacted to cover the expense of supervision, and the days and hours when the business shall be suffered will perhaps also be prescribed. Where an occupation like gaming or the sale of demoralizing articles is altogether prohibited, it is not uncommon to provide that whatever is kept for use or sale in violation of the law shall be forfeited by the owner, and, after judicial bearing, condemned and destroyed.^ And taxes are sometimes imposed with a view, to discourage occupations which are injurious in their tendency, but which the State does riot venture to prohibit.^ So the most proper business may be regulated to prevent its be- coming offensive to the public sense of decency,* or for any other reason injurious or dangei'ous ;^ and rules for the conduct of the most necessary and common occupations are prescribed when from their nature they afford peculiar opportunities for imposition and fraud.^ Cities commonly provide markets where provisions may be exposed for sale ; and these are subjected to careful regu- lations, and furnished with official inspectors to whom every dealer, may be required to exhibit his stock. Dealers may also be 1 The eale of opium may be forbidden, stallions and bulls in public places. Nolin State V. Ah Chew, 16 Nev. 50. Where i>. Franklin, 4 Yerg. 163. sale of liquors is allowed, it is common to " Watertown v. Mayo, 109 Mass. 315 ; require closing of places of sale on Sun- Blydenburg ». Miles, 39 Conn. 484 ; Tay- day; and it is held competent to enact lor u. State, 35 Wis. 298. The sale of any that the lighting up of such a place on pistol except the navy pistol may be for- that day shall be prima fade evidence of bidden. Dabbs v. State, 39 Ark. 353. guilt. Piqua v. Zimmerlin, 35 Ohio St. One operating a co-operative cheese fac- 607. Where a municipal ordinance per- tory may be required to give bonds, mits sales, the license may be forfeited Hawthorn v. People, 109 111. 302. The for violation of the ordinance. Ottumwa sale of goods, except at one's regular V. Schwab, 52 Iowa, 516. Municipal place of business, near camp meeting authorities empowered to close drinking grounds may be forbidden. Meyers v. places "temporarily" cannot order them Baker, 120 111. 567; Com. v. Bearse, 132 closed " till further order," but must de- Mass. 542. An inn-keeper may be re- fine the time. State v. Strauss, 49 Md. quired to take out a license. Bostiek v. 288. The keeping open after hours can- State, 47 Ark. 126. But the manufacture not be made a breach of the peace allow- of tobacco on any floor of a tenement ing arrest without a warrant. People v. house, if such floor is used as a residence, Haug, 37 N. W. Rep. 21 (Mieh.). may not be forbidden, in re Jacobs, 98 2 Ante, p. 718, note. N. Y. 98. " Youngblood v. Sexton, 32 Mich. * E. g., the business of insuring lives 406. or property. Ward v. Farwell, 97 111. * Like the keeping pd exhibition of 593 ; Lothrop v. Steadman, 42 Conn. 588. 744 CONSTITUTIONAL LIMITATIONS. [CH. XVL compelled to take out a license, and the license may be refused to a person of bad reputation, or taken away from a party detected in dishonest practices.' For dealings in the markets, weights and measures are established, and parties must conform to the fixed standards under penalty .^ It is also common to require draymen, hackmen, pawnbrokers, and auctioneers to take out licenses, and to conform to such rules and regulations as seem important to the public convenience and protection.* So for the protection of youth in institutions of learning, and for the good discipline of schools, the sale of liquors in their vicinity may be prohibited when allowed generally,* and credit for livery to pupils, -without the consent of the college authorities, may be sijbjected to penalty.^ So, for the protection of laborers against the oppres- sion of employers, it is held competent to forbid their being paid in anything else than legal-tender funds.^ Aad under its general right to require merchandise to be submitted to public inspection and regulation, the State may prescribe the size of packages and place of inspection for the shipment of tobacco to foreign countries, and impose penalties for failure to conform to the regulations.' The general rule undoubtedly is, that any person is at liberty ^ See, in general, Kightingale'B Case, 11 Pick. 168; BufEalo v. Webster, 10 Wend. 99; Bush v. Seabury, 8 Johns. 418; Ash v. People, 11 Mich. 347 ; State V. Leiber, 11 Iowa, 407 ; Le Claire v. Dav- enport, 13 Iowa, 210 ; White v. Kent, 11 Ohio St. 650 ; Bowling Green v. Carson, 10 Bush, 64; New Orleans v. Stafford, 27 La. Ann. 417. The power is continuing, and markets once established njay be changed at the option of the authorities, and they cannot even by contract deprive themselves of this power. Gale v. Kala- mazoo, 23 Mich. 344 ; Gall v. Cincinnati, 18 Ohio St. 563 ; Cougot v. New Orleans, 16 La. Ann. 21. Sales outside of public markets may be prohibited. Gossigi t>. New Orleans, 4 Sou. Rep. 15 (La.) ; Ex parte Byrd, 84 Ala. 17. 2 Guillotte V. New Orleans, 12 La. Ann. 432 ; Page v. Fazackerly, 36 Barb. 892 ; Raleigh v. Sorrell, 1 Jones (N. C), 49; Gaines w, Coates, 51 Miss. 335; Dil- lon, Mun. Corp. §§ 323, 324, and cases cited. Sales of food of which prizes or gifts are part of the inducement, may be forbidden. People v. Gillson, 109 N. Y. 389. As to market regulations in gen- eral, see Wartman v. Philadelphia, 33 Pa. St. 202; Spaulding v. Lowell, 23 Pick. 71 ; Gall v. Cincinnati, 18 Ohio St. 563 ; Municipality v. Catting, 4 La. Ann. 336 ; State v. Fisher, 52 Mo. 174, " Commonwealth v. Stodder, 2 Cush. 562 ; Morrill v. State, 38 Wis. 428 ; s. c. 20 Am. Rep. 12; Dillon, Mun. Corp. §§ 291-296. One who lets his horse and wagon for the hirer to use himself is not a drayman. State v. Robinson, 43 N. W. Rep. 833 (Minn. ). As to license fees, and when they are taxes, see ante, pp. 243, 607 ; Mayor, &c. of Mobile v. Yuille, 3 Ala. 187. * State V. Ranscher, 1 Lea, 96 ; Boyd v. Bryant, 35 Ark. 69 ; s. c. 37 Am. Rep. 6. See Bronson v. Oberlin, 41 Ohio St. 476. 6 Soper i>. Harvard College, 1 Pick. 177 ; 8. c. 11 Am. Dee. 159. In Com- monwealth V. Bacon, 13 Bush, 210, s. c. 26 Am. Rep. 189, it was held not compe- tent to forbid any one carrying oii stabling within a specified distance of a named agricultural society during its fairs. * Shaffer «. Union Mining Co., 65 Md. 74. ' Turner v. State, 55 Md. 240, affirmed 107 U. S. 38. CH. XVI.] THE POLICE POWER OF THE STATES. 745 to pursue any lawful calling, and to do so in his own way, not encroaching upon the rights of others. This general right can- not be taken away. It is not competent, therefore, to forbid any person or class of persons, whether citizens or resident aliens, offering their services in lawful business, or to subject others to penalties for employing them.i But here, as elsewhere, it is proper to recognize distinctions that exist in the nature of things, and under some circumstances to inhibit employments to some one class while leaving them open to others. Some employments, for example, may be admissible for males and improper fori females, and regulations recognizing the impropriety and forbid-/ ding women engaging in them would be open to no reasonable! objection.2 The same is true of young children, whose employ- ment in mines and manufactories is commonly, and ought always, to be regulated.^ And some employments in which integrity is of vital importance it may be proper to treat as privileges merely, and to refuse the license to follow them to any who are not reputable.* Whether the prohibited act or omission shall be made a crimi- nal offence, punishable under the general laws, or subject to pun- ishment under municipal by-laws, or, on the other hand, the party be deprived of all remedy for any right which, but for the regu- lation, he might have had against other persons, are questions which the legislature must decide. It is sufficient for us to have pointed out that, in addition to the power to punish misdemeanors and felonies, the State has also the authority to make extensive ^ Baker v. Portland, 5 Sawyer, 666. will doubt. See Matter of Quong Woo, ^ It has been held that a constitutional 13 Fed. Rep. 229. And in Ohio this may provision forbidding the General Assera- be forbidden under power to regulate bly granting " to any citizen, or class of saloons. Bergman v. Cleveland, 39 Ohio citizens, privileges or immunities which St. 651. upon the same terras shall not equally ' See Commonwealth v. Hamilton belong to all citizens," does not preclude* Manufacturing Co., 120 Mass. 383. restricting the licensing of the sale of in- * The legislature may prescribe the^ toxicating drinks to males. Blair v. Kil- qualifications for the practice of dentistry : Patrick, 40 Ind. 312. The people of Cali- Wilkins v. State, 113 Ind. 514 ; State v. fomia deemed it wise to provide by their Vandersluis, 43 N. W. Rep. 789 (Minn.) ; constitution that " no person shall on ac- Gosnell v. State, 12 S. W. Eep. 392 (Ark.) ; count of sex be disqualified from entering or medicine. State ». Dent, 25 W. Va. 1 ; upon or pursuing any lawful business, affirmed, 129 D. S. 114 ; Eastman v. vocation, or profession ; " and it has been State, 109 Ind. 278 ; People v. Phippin, 70 held that the legislature is now deprived Mich. 6. The right to practice cannot be of the power to prohibit the employment refused without giving the applicant an of females in drinking-cellars and other opportunity to be heard. State v. State places where liquors are kept for sale. Med. Ex. Board, 32 Minn. 324 ; Gage v. Matter of Maguire, 57 Cal. 604. That Censors, 63 N. H. 92. Physicians may such employment might otherwise be be required to report births and deaths, prohibited on good reasons, few persons Robinson v. Hamilton, 60 Iowa, 184. 746 CONSTITUTIONAL LIMITATIONS. [CH. XVL and varied regalations as to the time, mode, and circumstances in and under which parties shall assert, enjoy, or exercise their rights without coming in conflict with any of those constitutional principles which are established for the protection of private rights or private property.* ^ Upon the general right of the State to regulate trades and occupations, see further, Fierce v. Kimball, 9 Me. 54 ; 8. c. 23 Am. Dec. 637; Shepherd v. Com- missioners, 69 Ga. 635 ; State v. Callicut, 1 Lea, 716 ; Fry v. State, 63 Ind. 562. Where a municipality is given power to license occupations which are proper in themselves and not subject to special evils — e. g. that of a laundry — the li- cense cannot be made conditional on ob- taining consent of residents of the neigh- borhood, as this in effect would be a delegation of its power to license. Mat- ter of Quong Woo, 13 Fed. Rep. 229. The functions of a fertilizer inspector must, except by statutory permission, be exercised within the State. Hammond V. WUcher, 79 Ga. 421. CH. XVII.] THE EXPRESSION OF THE POPULAE WILL. 747 CHAPTER XVII. THE EXPRESSION OF THE POPULAR WILL, Although by their constitutions the people have delegated the exercise of sovereign powers to the several departments, they have not thereby divested themselves of the sovereignty. They retain in their own hands, so far as they have thought it needful to do so, a power to control the governments they create, and the three departments are responsible to and subject to be ordered, directed, changed, or abolished by them. But this control and direction must be exercised in the legitimate mode previously agreed upon. The voice of the people, acting in their sovereign capacity, can be of legal force only when expressed at the times and under the conditions which they themselves have prescribed and pointed out by the constitution, or which, consistently with the constitution, have been prescribed and pointed out for them by statute ; and if by any portion of the people, however large, an attempt should be made to interfere with the regular working of the agencies of government at any other time or in any other mode than as allowed by existing law, either constitutional or statutory, it would be revolutionary in character, and must be resisted and repressed by the officers who, fox the time being, represent legitimate government, 1 1 " The maxim which lies at the foun- Tliere are a number of provisions in dation of our government is that all po- different State constitutions which re- litical power originates with the people, quire that certain specified propositions But since tlie organization of governnjient ' — sucli, for example, as the amendment it cannot be claimed that either the le- of the constitution or the removal of a gislative, executive, or judicial powers, county seat — shall be carried only 'by either wholly or in part, can be exer- a majority vote of the electors, or per- cised by them. By the institution of haps by a two-thirds majority. Whetlier government the people surrender the ex- by majority in these provisions is in- ercise of all these sovereign functions of tended a majority of all who took part in government to agents chosen by them- the election, by voting on any proposition selves, who at least theoretically repre- then submitted, or by voting for any offi- sent the supreme will of their constituents, cer then to be chosen, or only a majority Thus all power possessed by the people of those who voted on the particular themselves is given and centred in their proposition, has sometimes been made to chosen representatives." Davis, Ch. J., turn on the peculiar phraseology of the in Gibson v. Mason, 5 Nev. 283. 291. See constitutional provision ; but it must be Luther v. Borden, 7 How. 1 ; Koehler v. confessed that it is impossible toharmon- Hill, 60 Iowa, 617 j State t>. Tnfly, 19 ize the cases, and we give references to Nev. 391. them without attempting it. Taylor v. 748 CONSTITUTIONAL LIMITATIONS. [CH. XVII. The authority of the people is exercised through elections, by means of which they choose legislative, executive, and judicial officers, to whom are to be entrusted the exercise of powers of government.! In some cases also they pass upon other questions Taylor, 10 Minn. 107 ; Bayard i>. Klinge, 16 Minn. 249; Gillespie v. Palmer, 'M Wis 544 ; State u. Winkelmeier, 35 Mo. 105; State v. Mayor &c., 37 Mo. 270; State V. Binder, 38 Mo. 450; State v. Sutterfield, 54 Mo. 391 ; State v. Brass- field, 67 Mo. 331 ; State o. St. Louis, 73 Mo. 435; State v. Francis, 95 Mo. 44; People I). Brown, 11 111. 478; Duunovan V. Green, 57 111. 63; Chestnutwood ». Hood, 68 111. 132 ; State «. Swift, 69 Ind. 505 ; State v. Lancaster Coanty, 6 Neb. 474 ; State v. Anderson, 42 N. W. Rep. 421 (Neb); Prohibitory Amendment Cases, 24 Kan. 700 ; State v. Echols, 20 Pae. Rep. 523 (Kan.); Cass County V. Johnson, 95 U. S. 360 ; Walker v. Os- wald, 68 Md. 146 ; Braden v. Sturaph, 16 Lea, 581. In respect to municipal and other corporate bodies the general rule is that if a quorum is present when an elec- tion is to be made, or other corporate ac- tion taken, and tlie minority for any reason refuse to rote, they must be deemed to acquiesce in tlie action of those who do vote. Oldknow v. Wainwright, or Rex o. Foxcroft, Burr. 1017 ; First Parish v. Stearns, 21 Pick. 148 ; Booker v. Young, 12 Gratt. 303 ; State v. Green, 37 Ohio St 227. 1 Where neither by constitution nor by statute are the qualifications for ofSce prescribed, any one is eligible who pos- sesses the elective franchise. It may hap- pen, therefore, that one may be an officer who is not a citizen of the United States ; for in a number of the States aliens who hare declared their intention to be- come citizens, and hare the qualification of residence, are giren the franchise. Mc- Carthy V. Froelke, 63 Ind. 507. Whether the converse is true, — that one not an elector cannot hold office, — in the absence of written law on the subject, is possibly open to question. In Barker v. People, 3 Cow. 686, 703, the Chancellor said : " Eli- gibility to office belongs not exclusively or specially to electors enjoying the right of suffrage. It belongs equally to all persons whomsoever not excluded by the Constitution." So, State v. George, 23 Fia. 585. But in Wisconsin it is held that only an elector can hold an office : State V. Smith, 14 Wis. 497 ; State v. Murray, 28 Wis. 96; and this is probably the general understanding. The question is not very important, as State constitutions or statutes generally lay down that rule, in some cases adding further require- ments. One holding a consulate abroad does not cease to be a qualified elector. Wheat V. Smith, 50 Ark. 266. See Hau- non V. Grizzard, 89 N. C. 115. A pro- vision that only a qualified elector shall hold office does not prevent making pay- ment of taxes a qualification for election as alderman. Darrow u. I'eople, 8 Col. 417. It is sufficient if a disability is re- moved before taking office, though exist- ing at the time of election. Privett v. Blckford, 26 Kan, 52, Under constitu- tional provisions that no other oath or test shall be required as a qualification for holding office than the oath of alle- giance to the constitution, political ties cannot be made a prerequisite. Att'y- Gen. V. Detroit Com. Council, 68 Mich. 213 ; Evansville v. State, 118 Ind. 426 ; State V. Denny, 118 Ind. 449. Contra, as to election officers People v. Hoffman, 116 111.587. See In re Wortman, 2 N. Y. S. 324. There are some implied dis- qualifications. One of these Is that a per- son shall not hold incompatible offices ; if he accepts an office incompatible with one already held by him, the other is vacated : Milward v. Thatcher, 2 T. R. 81 ; The King v. Tizzard, 9 B. & C. 418 ; People ». Carrlgue, 2 Hill, 98 ; People i'. Nostrand. 46 N. Y. 375 ; People ». Hani- fan, 96 111. 420; Stater. Hutt,2 Ark. 282 ; Stubbs V. Lea, 64 Me. 95 ; but see De Turk V. Com., 129 Pa. St. 151 ; and if he is elected to both at the same time, he declines one when he accepts the other. Cotton V. Phillips, 56 N. H. 219. Incom- patibility between two offices is an incon- sistency in the functions of the two, — as judge and clerk of the same court ; officer who presents his personal account fop audit, and officer who passes upon it, &c. : People r. Green, 58 N. Y. 495 ; sheriff and justice of the peace: State Bank ». Onr- ran, 10 Ark. 142 ; Stubbs v. Lea, 64 Me. CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 749 specially submitted to them, and adopt or reject a measure ac- cording as a majority may vote for or against it. It is obviously impossible that any considerable people should in general meeting consider, mature, and adopt their own laws; but when a law has been perfected, and it is deemed desirable to take the expression of public sentiment upon it, or upon any other single question the ordinary machinery of elections is adequate to the end, and the expression is easily and without confusion obtained by sub- 195 ; Wilson v. King, 3 Lit. 457 ; s c. 14 Ani. Dec. 84 ; State v. GofE, 15 R. 1. 505 ; governor and member of tlie legislature ; justice of tlie peace and judge of the ap- pellate court, &c. See Commonwealth v. Binns, 17 S. & B. 221 ; State v. Clarke, 3 Nev. 566; State v. Feihleman, 28 Ark. 424; Mohan v. Jackson, 62 Ind. 699; State V. Weston, 4 Neb. 234 ; Be District Attorney, &c., 11 Phila. 695 ; Sublett v. Bidwell, 47 Miss. 266 ; s. c. 12 Am. Eep. 338 ; Barnura v. Gilman, 27 Minn. 466 ; 8. c. 38 Am. Rep. 304 ; McNeill v. Somers, 96 N. C. 467. In Indiana a judge is in- eligible to a non-judicial office whose term begins before the judicial term expires Vogel V. State, 107 Ind. 874. See Smith c^. Moore, 90 Ind. 204. It is also some- times provided that no person shall hold offices in two departments of the govern- ment at the same time, or two lucrative offices ; as to which see Dailey v. State, 8 Blackf . 329 ; Creighton v. Piper, 14 Ind. 182; Kerry. Jones, 19 Ind. 351; People V. Whitman, 10 Cal. 38; Crawford v. Dunbar, 52 Cal. 36; Howard v. Shoe- maker, 36 Ind. 115; State ti. Kirk, 44 Ind. 401; Foltz v. Kerlin, 105 Ind. 221; People V. Sanderson, 30 Cal. 160. Or hold both a federal and a State office. Rcftl- man v. Harcourt, 4 B. Monr. 224, 499 ; Hogkn «. Carpenter, 4 Bush, 89; i?e Corliss, 11 R. I. 638 ; State v. De Gress, 53 Tex. 387 ; Davenport v. Mayor, 67 N. Y. 456; People v. Brooklyn Common Council, 77 N. Y. 503 ; 8. c. 33 Am. Eep. 659 ; State v. Clarke, 3 Nev. 566 ; People V. Leonard, 73 Cal. 230 ; but a federal watchman may be an alderman. Doyle v. Raleigh, 89 N. C. 133. Or be eliaible to re-election to an office after holding it for a specified period. See Gonell o. Bier, 15 W. Va. 811 ; Carson ». McPheteridge, 15 Ind. 827 ; Horton u. Watson, 23 Kan. 229. Or be eligible while a public de- faulter. See Hoskins v. Brantley, 67 Miss. 814 ; Cawley v. People, 95 111. 249. Or that he shall be disqualified for using money corruptly to procure election. Commonwealth v. Walter, 86 Pa. St. 15. Or for bribery at a nominating conven- tion. Leonard v. Com,, 112 Pa. St. 607. See Re Nomination of Public Officers, 9 Col. 629; though a mere promise to serve for less than lawful fees is not a disqualification, where one has not been convicted for it as for an offence against the law. State v. Humphreys, 12 S. W. Rep. 99 (Tex.). See, also, Meredith v. Christy, 64 Cal. 95 ; People v. Goddard, 8 Col. 432. Or by or for being a party to a duel. Cochran v. Jones, 14 Am. Law Reg. 222. As to who are " officers " within the meaning of that term in provisions exam- ined, see Butler v Board of Regents, 32 Wis. 124 ; Brown v. Turner, 70 N. C. 93 ; Eliason v. Coleman, 86 N. C. 235 ; State v. Wilson, 29 Ohio St. 347 ; Throop v. Lang- don, 40 Mich. 673; State n. Wilmington City Council, 3 Harr. 294; Dickson v. People, 17 III. 191 ; Shurbun v. Hooper, 40 Mich. 603. It was held in Olive v. Ingram, Strange, 1114, that a woman, being a voter at par- ish elections, might he chosen sexton. Women may by law be school officers in Massachusetts. Opinion of Judges, 115 Mass. 602. And in Iowa. Huff v. Cook, 44 Iowa, 639. Also in many other States. They are also appointed notaries public in several States, are State librarians in some, and members of State charitable boards. In Illinois a woman may be master in chancery : Schuchardt v. Peo- ple, 99 111. 501 ; and in Colorado, a deputy clerk. It is not an " office " which only a qualified elector may hold. Jeffries ». Harrington, 11 Col. 191. Infants as well as women may be appointed deputies to such ministerial officers as are entitled to act by deputy. 750 CONSTITUTIONAL LIMITATIONS. [CH. XVIL mitting such law or such question for an affirmative or negative vote. In this manner constitutions and amendments thereof are adopted or rejected, and matters of local Importance in many cases, such as the location of a county seat,^ the contracting of a local debt, the erection of a public building, the acceptance of a municipal charter, and the like, are passed upon and determined by the people whom they concern, under constitutional or statu- tory provisions which require or permit it.^ It is supposed when laws are framed for the conduct of elec- tions that their requirements will be observed ; that the persons chosen to perform official duties will possess the legal qualifica- tions, and that they will take any oath and give any bond that may be required of them by law, and be regularly inducted into office. But from accident, mistake of law, forgetfulness, or other inadvertence, and sometimes for less excusable reasons, it often happens that some one is found in possession and performing the duties of a public office who cannot defend his incumbency by the strict letter of the law. The fact renders necessary a classificar tion of officers as de jure and de facto. An officer de jure is one who, possessing the legal qualifications, has been lawfully chosen to the office in question, and has fulfilled any conditions precedent to the performance of its duties. By being thus chosen and observing the precedent conditions, such a person becomes of right entitled to the possession and enjoyment of the office, and the public, in whose interest the office is created, is entitled of right to have him perform its duties. If he is excluded from it, the exclusion is both a public offence and a private injury. An officer de jure may be excluded from his office by either an officer de facto or an intruder. An officer de facto is one who by some color of right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact.^ His color of right may come from an elec- ' Where the oonatitution leaves the not a good officer in point of law. Parker location of a country seat to a local vote, v. Hett, Ld. Raym. 658; King v. Bedford the legislature has no power to decide Level, 6 East, 356, 368. One wlio comes upon It. Stuart v. Blair, 8 Bax. 141 ; in by claim or color of right, or who ex- Verner v. Simmons, 33 Ark. 212. ercises the office with sucli circumstances ^ It is not competent for the legislature of acquiescence on the part of tlie public to confer the selection of a public officer s^s at least afford a strong presumption of upon a voluntary association of private right, but by reason of some defect m his individuals. Therefore a statute giving title, or of some informality, omission, or to the members of a voluntary detective want of qualification, or by reason of the association the powers of constables is expiration of his term of service, is un- void. Abels v. Supervisors of Ingham, able to maintain his possession when 42 Mich. 526. called upon by the government to show » One who has the reputation of being by what title he holds it. Blackwell on the officer he assumes to be, and yet is Tax Titles, 92, 93. One who exercises CH. XVII.] THE EXPEESSION OF THE POPULAR WILL. 751 tion or appointment made by some ofiQoer or body having colorable but no actual right to make it ; ^ or made in such disregard of legal requirements as to be ineifectual in law ; or made to fill the place of an officer illegally removed ; ^ or made in favor of a party not having the legal qualifications ; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated ; ^ or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without in- quiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be.* An intruder is one who attempts to perform the duties of an office without authority of law, and without the support of public acquiescence. No one is under obligation to recognize or respect the acts of an intruder, and for all legal purposes they are absolutely void.^ But for the sake of order and regularity, and to prevent confusion in the conduct of public business and insecurity of private rights, the acts of officers de facto are not suffered to be questioned be- cause of the want of legal authority except by some direct pro^ ceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emol- ument, by reason of being the officer which he claims to be.® In all other cases the acts of an officer de facto are as valid and the duties of an office under color of tinues to act after removal from his town, election or appointment to that office. Case v. State, 69 Ind. 46 ; Wilson v. King, Plymouth v. Painter, 17 Conn. 585, 588. 3 Litt. 457; b. c. 14 Am. Dec. 84. There can be no rfe/aeto incumbent of an * State «. Carroll, 38 Conn. 449,471; office in the possession of an officer, b. c. 9 Am. Rep 409 ; Fetersilea v. Stone, Cohn ». Beal, 61 Miss. 398; State v. 119 Mass. 465; People v. Terry, 108 Blossom, 19 Nev. 312. One who is in N. Y. 1. hiding cannot be a de facto officer. Wil- ' Plymouth v. Painter, 17 Conn. 585 ; liams V. Clayton, 21 Pac. Rep. 398 (Utah). Peck w. Holcombe, 8 Port. 329 ; Peter- ^ As where the appointing body is silea v. Stone, 119 Mass. 465. There can acting under an unconstitutional law. be no officer de facto when there is no Strang, Ex parte, 21 Ohio St. 610 ; Com- office. Carlton v. People, 10 Mich. 250{ monwealth v. McCombs, 56 Pa. St. 436 ; In re HInkle, 31 Kan. 712. If there is by Cole ti. Black River Falls, 67 Wis. 110 ; reason of the unconstitutionality of a law Yorty V. Paine, 62 Wis. 154. See Leach no office de jure to fill, there can be no V. People, 122 111. 420. Compare Norton officer c?e facto, Norton v. Shelby Co., V. Shelby Co., 118 U. S. 426. 118 U. S. 425. Compare Leach .». Peo- 'i Watkins v. Inge, 24 Kan. 612. See pie, 122 111. 420. Mead v. County Treasurer, 36 Mich. 416. « Thus a justice, sued for issuing pro- ' As when one continues to perform cess after his term has expired, must the duties of judge after having accepted show his capacity de jure. Grace v. a seat in the legislature. Woodside w. Teague, 81 Me. 569. Wagg, 71 Me. 207. Or a constable con- 752 CONSTITUTIONAL LIMITATIONS. [CH. XVIL effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for, the protection of the public and of third parties.' This is an important principle, which finds concise ex- pression in the legal maxim that the acts of officers de facto can- not be questioned collaterally. The Right to participate in Elections. In another place we have said that, though the sovereignty is in the people, as a practical fact it resides in those persons who by the constitution of the State are permitted to exercise the elec- tive franchise.^ The whole subject of the regulation of elections, including the prescribing of qualifications for suffrage, is left by the national Constitution to the several States, except as it is provided by that instrument that the electors for representatives in Congress shall have the qualifications requisite for electors of the most numerous branch of the State legislature,^ and as the fifteenth amendment forbids denying to citizens the right to vote on account of race, color, or previous condition of servitude.* Participation in the elective franchise is a privilege rather than a right, and it is granted or denied on grounds of general policy ; the prevailing view being that it should be as general as possible consistent with the public safety. Aliens are generally excluded ^ 1 Tucker v. Aiken, 7 N. H. 113 ; Tay- of the new amendments to the federal lor V. Skrine, 3 Brev. 516 ; Fowler v. Constitution in their relation to suffrage Beebe, 9 Mass. 231 ; s. c. 6 Am. Dec. 62 ; are considered. Until recently the reg- Hildreth v. Mclntyre, 1 J. J. Marsh. 206 ; ulation and control of all elections, in- s. 0. 19 Am. Dec. 61 ; Wilcox v. Smith, eluding elections for members of Con- 5 Wend. 231; s. o. 21 Am. Dec. 213; gress, and the punishment of offences People 0. Kane, 23 Wend. 414 ; In re against election laws, has been left to the Kendall, 85 N. Y. 302 ; Brown v. Lunt, 37 States exclusively. Congress, however, Me. 423; State v. Carroll, 38 Conn. 449; has undoubted authority to make such State 0. Bloom, 17 Wis. 521 ; People o. regulations as shall seem needful to en- Bangs, 24 111 184 ; Sharp v. Thompson, sure a full and fair expression of opinion 100 111. 447 ; Clark v. Commonwealth, 29 in the election of members of Congress, Pa. St. 129 ; Kimball v. Alcorn, 45 Miss, and also to guard and protect all rights 151; Burke w. Elliott, 4 Ired. 355; Gibb conferred by the recent amendments to V. Washington, 1 McAll. 430 ; Bailey v. the federal Constitution. Ex pm-te Sie- Fisher, 38 Iowa, 229 ; Ex parte Norris, 8 bold, 100 U. S. 371 ; Ex parte Clarke, 100 S. C. 408; Threadgill «. Railroad Co., 73 U. S. 399; In re Coy, 127 V. S. 781; N. C. 178 ; McLean v. State, 8 Heisk. 22; United States v. Goldman, 3 Woods, 187. Kreidler v. State, 24 Ohio St. 22 ; Cocke 8 Art. 1, § 2. V. Halsey, 16 Pet. 71. A de facto con- * This amendment had the effect to ab- Btable stands upon the same ground as rogate all provisions in State laws and one de jure as regards his liability for constitutions restricting the suffrage to killing a person resisting arrest. State white persons. Neal v. Delaware, 103 V. Dierberger, 90 Mo. 369. U. S. 370. 2 Ante, p. 40. See article by Dr. Spear, » An unnaturalized Indian, who has in 16 Albany Law Journal, 272, in which, surrendered his tribal relations, is not a among other things, the force and scope citizen nor entitled to vote, though bom CH. XVII.] THE E3CPEESSI0N OF THE POPULAR WILL. 753 though in some States they are allowed to vote after residence for a specified period,, provided they have declared their intention to become citizens in the manner prescribed by law. The fifteenth amendment, it will be seen, does not forbid denying the franchise to citizens except upon certain specified grounds, and. it is matter of public history that its purpose was to prevent discriminations in this regard as against persons of African descent., Minors, who equally with adult persons are citizens, are still excluded, as are also women,! and sometimes persons who have been convicted of infamous crimes.2 In some States laws, will be found in existence which, either generally or in particular cases,, deny the right to vote to those persons who lack a specified property qualification,, or who do not pay taxes. In some States idiots and lunatics are also expressly excluded; and it has been supposed that these unfortunate classes,, by the common political law of England and of this country, were excluded with, women, minors, and aliens, from exercising the right of suffrage, even though not prohibited therefrom by any express constitutional or statutory provision.^ Wherever the constitution has prescribed the qualifications of electors, they cannot be changed or added to by the legislature,* or otherwise than by an amendment of thQ constitution. in the United States and a resident of a. State. Elk v. Wilkins, 112 U. S. 94. ^ See Opinions of Justices, 62 Me. 596 ^ Rohrbacher v. Mayor of Jackson, 51 Miss. 735; Spencer ii. Board of Kegistration, 1 MacArtliur, 169 ;, Van Valkenburg v. Brown, 43 Cal. 43 ; Minor v. Happersett,. 21 Wall. 162; Bloomer v. Todd, 19 Pac Bep. 185 (Wash.). But in some States tliey may vote upon school matters only.. Brown v. Phillips, 71 Wis. 239 ; State v. Cones, 15 Neb. 444 ; Belles v. Burr, 76 Mich. 1. 2 Story on Const. (4th. ed.) § 1972. ° See Cuehing's Legislative Assem- blies, § 24. Also § 27, and notes referring to legislative cases ;, McCrary, Law of Elections^ §§ 50, 73 ; Clark v. Robinson, 88 111. 498. Drunkenness is regarded as temporary insanity. Ibid. Idiots and insane persons are excluded in Alabama, Arkansas. California, Delaware, Floridai, Iowa, Kansas, Louisiana, Maryland (pro- vided they are under guardianship as such), Minnesota, Nebraska, Nevada, New Jersey, Ohio, Oregon, Rhode Island, South Carolina, Virginia, West Virginia, and Wisconsin. Convicted felons are ex- cluded la Alabama, Arkansas, California, 48 Connecticut, Delaware, Florida, Illinois,, Iowa, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, Ne- braska, Nevada,. New Jersey, North Caro- lina, Oregon, Rhode Island, Texas, Vir- ginia, West Virginia, and Wisconsin- Persons under guardianship are excluded In Florida, Kansas, Maine, Massachu- setts, Minnesota, Rhode Island, and Wis- consin. Paupers are excluded in Dela- ware, Maine, Massachusetts (see Justices' Opinions, 124 Mass. 596), New Jersey, Rhode Island, and West Virginia.. Per- sons kept in any poorhouse or other asy- lum at public expense are excluded in California, Colorado, Missouri,, and South Carolina. Persons confined in public prisons are excluded in California, Colo- rado, Missouri, and South Carolina. Per- sons under interdiction are excluded in Louisiana ; and persons excused from paying taxes at their own request, in New Hampshire. Capacity to read is required in Connecticut ; and capacity to read and write, in Massachusetts. * See Green v. Shumway, 39 N. Y. 418 ; Brown v. Grover, 6 Bus.h, 1 ; Quinn V. State, 85 Ind. 485 ; Huber v. Reiley, 53 Pa. St. 112 ; ante, p. 79, note ; People 754 CONSTITDTIONAL LIMITATIONS. [CH. XVII. One of the most common requirements is, that the party offer- ing to vote shall reside within the district which is to be affected by the exercise of the right. If a State officer is to be chosen, the voter should be a resident of the State : and if a county, city, or township officer, he should reside within such county, city or township. This is the general rule ; and for the more convenient determination of the right to vote, and to prevent fraud, it is now generally required that the elector shall only exercise within the municipality where he has his residence his right to participate in either local or general elections. Kequiring him to vote among his neighbors, by whom he will be likely to be generally known, the opportunities for illegal or fraudulent voting will be less than if the voting were allowed to take place at a distance and among strangers. And wlierever this is the requirement of the constitu- tion, any statute permitting voters to deposit their ballots else- where must necessarily be void.^ A person's residence is the place of his domicile, or the place where his habitation is fixed without any present intention of removing therefrom.^ The words " inhabitant," " citizen," and V. Canaday, 73 N. C. 198 ; State v. Tuttle, 53 Wis. 45. Compare State v. Neal, 42 Mo. 119. Where A disqualification to vote is made to depend upon the commis- sion of crime, the election officers cannot be made the triers of the offence. Huber V. Reiley, 53 Pa. St. 112; State v. Sy- monds, 59 Me. 151 ; Burlcett v. McCarty, 10 Bush, 758. It is not competent for the legislature to discriminate between voters and require that one ciass of them shall be taxpayers, while not making tlie same requirement as to the others. Lyman v. Martin, 2 Utah, 186. But voters at mu- nicipal elections may be required to pay taxes before voting. Buckner a. Gordon, 81 Ky. 665. In Nevada every male citi- zen, except convicts and paupers, having the franchise. Mormons cannot be ex- cluded by registration laws. State «. Findley, 19 Pac. Rep. 241. It is other- wise in the Territories. Murphy v. Ram- sey, 114 U. S. 43; Innis v. Bolton, 17 Pac. Rep. 264 (Idaho). 1 Opinions of Judges, 30 Conn. 591 ; Hulseman v. Rems, 41 Pa. St. 396; Chase v. Miller, 41 Pa. St. 403; Opin- ions of Judges, 44 N. H. 683; Bourland V. Hildreth, 26 Cal. 161 ; People v. Blodg- ett, 13 Mich. 127 ; Opinions of Judges, 37 Vt. 665 ; Day i>. Jones, 31 Cal. 261. The case of Morrison v. Springer, 15 Iowa, 304, is not in harmony with those above cited. So far as the election of representatives in Congress and electors of president and vice-president is con- cerned, the State constitutions cannot preclude the legislature from prescribing the " times, places, and manner of hold- ing " the same, as allowed by the national Constitution, — art. 1, § 4, and art. 2, § 1, — and a statute permitting such election to be held out of the State would conse- quently not be invalid. Opinions of Jus- tices, 45 N. H. 595 ; Opinions of Judges, 37 Vt. 665. There are now constitutional provisions in New York, Michigan, Mis- souri, Connecticut, Maryland, Kansas, Mississippi, Nevada, Rhode Island, and Pennsylvania, which permit soldiers in actual service to oast their votes where they may happen to be stationed at the time of voting. It may also be allowed in Ohio. Lehman o. McBride, 15 Ohio, N. s. 573. ^ Putnam v. Johnson, 10 Mass. 488; Rue High's Case, 2 Doug. (Mich.) 515 ; Fry's Election Case, 71 Pa. St. 302 ; 8. c. 10 Am. Rep. 698 ; Church v. Rowell, 49 Me. 367 ; Littlefield v. Brooks, 50 Me. 475 ; Parsons v. Bangor, 61 Me. 457 ; Ar- nold V. Davis, 8 R. I. 341 ; Hannon v. Grizzard, 89 N. C. 115; Dale v. Irwin, 78 III. 170 ; Clark u. Robinson, 88 111. 498 ; CH. XVII.] THE EXPRESSION OF THE POPULAK WILL. 755 " resident," as employed in different constitutions to define the qualifications of electors, mean substantially the same thing ; and one is an inhabitant, resident, or citizen at the place where he has his domicile or home.^ Every person at all times must be consid- ered as having a domicile somewhere, and that which he has acquired at one place is considered as continuing until another is acquired at a different place.^ It has been held thSt a student in an institution of learning, who has residence there for purposes of instruction, may vote at such place, provided he is emancipated from his father's family, and for the time has no home elsewhere.^ Sturgeon v. Korte, 34 Ohio St. 525 ; Story, Confl. Laws, § 43. As to what residence is sufficient, see Kellogg v. Uiukman, 21 Pac. Rep. 326 (Col.) ; Kreitz ji. Behrens- nieyer, 126 111. 141. That one should vote wliere he eats, not where he lodges, if at different places, see Warren v. Board Registration, 40 N. W. Rep. 553 (Mich.). 1 Cushing's Law and Practice of Le- gislative Assemblies, § 36 ; State v. Aid- rich, 14 R. I. 171. ^ That it is not a necessary consequence of this doctrine that one must always be entitled to vote somewhere, see Kreitz v. Behrensmeyer, 126 111. 141. * Putnam v. Johnson, 10 Mass. 488 ; Lincoln v. Hapgood, 11 Mass. 350 ; Wil- braham v. Ludlow, 99 Mass. 587 ; Perry V. Revnolds, 53 Conn. 527. Compare Dale v. Irwin, 78 HI. 170. A different conclusion is arrived at in Pennsylva- nia. Fry's Election Case, 71 Pa. St. 302 ; s. c. 10 Am. Rep. 698. And in Iowa, Vanderpoel e. O'Hanlon, 53 Iowa, 246 ; B. c. 36 Am. Rep. 216. " The questions of residence, inhabitancy, or domicile, — for although not in all respects precisely the same, they are nearly so, and depend much upon the same evidence, — are at- tended with more difficulty than almost any other which are presented for adju- dication. No exact definition can be given of domicile ; it depends upon no one fact or combination of circumstances ; but, from the whole taken together, it must be determined in each particular case. It is a maxim that every man must have a domicile somewhere, and also that he can have but one. Of course it follows that his existing domicile con- tinues until he acquires another ; and vice versa, by acquiring a new domicile he re- linquishes his former one. From this view it is manifest that very slight cir- cumstances must often decide the ques- tion. It depends upon the preponderance of tlie evidence in favor of two or more places ; and it may often occur that the evidence of facts tending to establish the domicile in one place would be entirely conclusive, were it not for the existence of facts and circdmstances of a still more conclusive and decisive character, which fix it beyond question in another. So, on the contrary, very slight circumstances may fix one's domicile, if not controlled by more conclusive facts fixing it in an- other place. If a seaman, without family or property, sails from the place of his nativity, which may be considered his domicile of origin, although he may re- turn only at long intervals, or even be absent many years, yet if he does not by some actual residence or other means ac- quire a domicile elsewhere, he retains his domicile of origin." Shaw, Ch. J., Thorn- dike V. City of Boston, 1 Met. 242, 245. And see Alston v. Newcomer, 42 Miss. 186; Johnson v. People, 94 III. 505. In Inhabitants of Abington v. Inhabitants of North Bridgewater, 23 Pick. 170, it apr peared that a town line ran through the house occupied by a party, leaving a por- tion on one side sufficient to form a habi- tation, and a portion on the other not sufficient for that purpose. Held, that the domicile must be deemed to be on the side first mentioned. It was intimated also that where a house was thus divided, and the party slept habitually on one side, that circumstance should be re- garded as a preponderating one to fix his residence there, in the absence of other proof. And see Rex v. St. Olave's, 1 Strange, 51. By the constitutions of several of the States, it is provided, in substance, that no person shall be deemed to have gained 756 CONSTITUTIONAL LIMITATIONS. [CH. XVIL Temporary absence from one's home, with continuous intention ta return, will' not deprive one of his residence, even though it extend through a series of years.^ Conditions to the Exercise of the Elective Franchise. While it is true that the legislature cannot add to the constitu- tional qualifications of electors, it must nevertheless devolve upon that body to establish such regulations as will enable all persons entitled to the privilege to exercise it fi-eely and securely, and eXjClude all who are not entitled from improper participation therein. For this purpose the times of holding elections, the manner of conducting them and of ascertaining the result, are prescribed, and heavy penalties are imposed upon those who shall vote illegally, or instigate others to do so,, or who sliall attempt to preclude a fair election or to falsify the result. The propriety, and indeed the necjpssity, of such regulations are undisputed. In some of the States it has also been regarded as important that lists of voters should be prepared before the day of election, in which should be registered the name of every person qualified to vote. Under such a regulation, the officers whose duty it is to administer the election laws are enabled to proceed with more deliberation in the discharge of their duties, and to avoid the haste and confusion that must attend the determination upon election day of the various and sometimes difficult questions con- cerning the right of individuals to exercise this important fran- or lost a residence by reason of his pres- the place of an institution of learning, the ence or absence, while employed in the fact of his entering it as a student will not service of the United States ; nor while a preclude his acquiring a legal residence student in any seminary of learning ; nor there : Sanders v. Getchell, 76 Me. 158 ; while kept at any almshouse or asylum at Pedigo v. Grimes, 113 Ind. 148 ; but if he public expense ; nor while confined in any is domiciled at the place for the purposes public prison. See Const, of New York, of instruction only, it is deemed proper Illinois, Indiana, California, Michigan, and right that he should neither lose his Rhode Island, Minnesota, Missouri, Ne- former residence nor gain a new one vada, Oregon, and Wisconsin. A pauper in consequence thereof. Vanderpoel v. inmate of a soldier's home comes within O'Hanlon, 53 Iowa, 246 ; s. c. 36 Am. such provision. Silvey v. Lindsay, 107 Eep. 216. N. Y. 55. In several of the other States That persons residing upon lands there are provisions covering some of within a State, but set apart for some na- these oases, but not all. A provision that tional purpose, and subjected to the ex- no person shall be deemed to have gained elusive jurisdiction of tlie United States, or lost a residence by reason of his pres- are not voters, see Opinions of Judges, 1 ence or absence in the service of the Uni- Met. 580 ; Sinks v. Reese, 19 Ohio St. 306 ; ted States, does not preclude one from McCrary, Law of Elections, § 29. acquiring a residence in the place where, i Harbaugh v. Cieott, 33 Mich. 241 ; and in the time while^ he is present in Pry's Election Case, 71 Pa. St. 802; b. c. such service. Pfe'ople w. Holden, 28 Cal. 10 Am, Rep. 698; Dennis v. State, 17 128 ; Mooar v. Harvey, 128 Mass. 219. If Fla. 389 ; Wheat v. Smith, 50 Ark. 266. a man takes up his permanent abode at CH. xvil] the expression oj the popular will. 757 chise. Electors, also, by means of this registry, are notified in advance what persons claim the right to vote, and are enabled to make the necessary examination to determine whetiier the claim is well founded, and to exercise the right of challenge if satisfied any person registered is unqualified. When the constitution has established no such rule, and is entirely silent on the subject, it has sometimes been claimed that the statute requiring voters to be registered before the day of election, and excluding from the right all whose names do not appear upon the list, was unconsti- tutional and void, as adding another test to the qualifications of electors wliich the constitution has prescribed, and as having the effieet, where electors are not registered, to exclude from voting persons who have an absolute right to that franchise by the fun- damental law.^ This position, ihowever, has not been generally accepted as sound by the courts. The provision for a registry deprives no one of his right, but is only a reasonable r^ulation under which the right may be exercised.^ Such regulatiojis must always have been within the power of the legislature, unless for- bidden. Many resting upon the same principle are always pre- «cribed, and have never been supposed to be open to objection. Although the constitution provides that all male citizens twenty- one years of age and upwards shall be entitled to vote, it would not be seriously contended that a statute which should require all such citizens to go to the established place for holding the polls, and there deposit their ballots, and not elsewhere, was a violation of the constitution, because prescribing an additional qualification, namely, the presence of the elector at tlie polls. All such reason- able regulations of the constitutional right which seem to the legislature important to the preservation of order in elections, to 1 See Page v. Allen, 58 Pa. St. 338. 665; Edmonds w. Banbury, 28 Iowa, 267 ; And compare Clark v. Robinson, 88 111. a. c. 4 Am. Kep. 177 ; Ensworth v. Albin, 498 ; Dells v. Kennedy, 49 Wis. 655 ; b.c. 35 46 Mo. 450 ; Auld u. Walton, 12 La. Ann. Am. Rep. 786; White D.Multnomah Co., 129; /» re Polling Lists, 13 K. I., 729; ISOreg. 317. In State ». Corner,22 Neb. State v. Butts, 81 Kan. 537- As to the 26(5, it is said the voter has the right xsonclusiTeness of the registry, see Hyde to prove himself an elector, register, and k. Brush, 34 Conn. 454 ; Keenan v. Cook, vote at any time before the polls close. 12 R. I. 52. A law closing re^stration The Supreme Court of Pennsylvania laid three weeks before the election has been idown a rule in conflict with these cases, in upheld. People v. Hoffman, 116 111.587. Patterson v. Barlow, 60 Pa. St. 54, which Otherwise as to one closing it five days case is in harmony with those cited in the before: Daggett u. Hudson, 43 Ohio St. next note. 548 ; and ten days before. State v. Cor- 2 Capen D. Foster, 12 Pick. 485; s. c. ner, 22 iNeb. 265. Registration may be 23 Am. Dec. 632 ; People a. Kopplekom, required at a city election when it is not 16 Mich. 342 ; State v. Bond, 38 Mo. 425 ; by State law. McMahon v. Savannah, State o. Hilmantel, 21 Wis. 566 ; State v. 66 Ga. 217. See Com. v. McClelland, 83 Baker, 38 Wis. 71; Byler v. Asher, 47 Ky. 686. 111. 101; Monroe k. Collins, 17 Ohio St. 758 CONSTITUTIONAL LIMITATIONS. [CH. XVH. guard against fraud, undue influence, and oppression, and to pre- serve the purity of the ballot-box, are not only within the consti- tutional power of the legislature, but are commendable, and at least some of them absolutely essential. And where the law requires such a registry, and forbids the reception of votes from any persons not registered, an election in a township where no such registry has ever been made will be void, and cannot be sustained by making proof that none in fact but duly qualified electors have voted.' It is no answer that such a rule may enable the registry officers, by neglecting their duty, to disfranchise the electors altogether ; the remedy of the electors is by proceedings to compel the performance of the duty ; and the statute, being imperative and mandatory, cannot be disregarded.^ The danger, however, of any such misconduct on the part of officers is com- paratively small, when the duty is entrusted to those who are chosen in the locality where the registry is to be made, and who are consequently immediately responsible to those who are in- terested in being registered. All regulations of the elective franchise, however, must be rea- sonable, uniform, and impai-tial; they must not have for their purpose directly or indirectly to deny or abridge the coustitu- tional right of citizens to vote, or unnecessarily to impede its exercise ; if they do, they must be declared void.^ 1 People V. Kopplekom, 16 Mich. 342 ; 23 Am. Dec. 632 ; Monroe v. Collins, 17 Zeiler v. Chapman, 54 Mo. 502 ; Nefzger Ohio St. 665. All male citizens resident V. Davenport, &c. E. R. Co., 36 Iowa, 642 ; in the State a year and the town six Chicago, &c. B. B. Co. o. Mallory, 101 months being electors, an act is void which 111. 583. It has nevertheless been held forbids to a naturalized person the right that if the ballots of unregistered voters to be registered within thirty days of nat- are received, they should not be rejected uralization. Kinneen v. Wells, 144 Mass. in a contest. Dale v. Irwin, 78 111. 170 ; 497. Under the Constitution of Ohio Kuykendallw. Barker, 89 111. 126. The law the right of suffrage is guaranteed to does not become unconstitutional because " white male citizens," and by a long of the fact that, by the neglect of the offl- series of decisions it was settled that per- cers to attend to the registry, voters may sons having a preponderance of white be disfranchised. Ibid. Ensworth v. AI- blood were " white " within its meaning, bin, 46 Mo. 450. But informalities in » It was also settled that judges of election registry will not vitiate it, and canvassers were liable to an action for refusing to re- cannotreject votes because of them. State ceive the vote of a qualified elector. A V. Baker, 38 Wis. 71. Compare Barnes ». legislature unfriendly to the construction Supervisors, 51 Miss. 305; Newsom .». of the constitution above stated passed Earnlieart, 86 N. C. 391 ; De Berry v. an act which, while prescribing penalties Nicholson, 102 N. C. 465. That a board against judges of election who sho\ild re- of registration has judicial functions, see fuse to receive or sanction the rejection Fausler v. Parsons, 6 W. Va. 486 ; s. c. of a ballot from any person, knowing him 20 Am. Rep. 431. Such board may be to have the qualifications of an elector, civilly liable for wrongful and malicious concluded with a proviso that the act refusal to register a person. Murphy v. and the penalties thereto " shall not apply Ramsey, 114 U. S. 15. to clerks or judges of election for refusing 2 Capen v. Foster, 12 Pick. 485; a. a. to receive the votes of persons having a CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 759 In some other cases preliminary action by the public authori- ties may be requisite before any legal election can be held. If an election is one which a municipality may hold or not at its option, and the proper municipal authority decides against holding it, it is evident that individual citizens must ^.cquiesce, and that any votes which may be cast by them on the assumption of right must be altogether nugatory.^ The same would be true of an election to be held after proclamation for that purpose, and which must fail if no such proclamation has been made.^ Where, how- ever, both the time and the place of an election are prescribed by law, every voter has a right to take notice of the law, and to deposit his ballot at the time and place appointed, notwithstanding the officer, whose duty it is to give notice of the election, has failed in that duty. The notice to be thus given is only additional to that which the statute itself gives, and is prescribed for the purpose of greater publicity ; but the right to hold the election comes from the statute, and not from the official notice. It has therefore been frequently held that when a vacancy exists in an office,, which the law requires shall be filled at the next general election, the time and place of which are fixed, and that notice of the general election shall also specify the vacancy to be filled, an election at that time and place to fill the vacancy will be valid, notwithstanding the notice is not given ; and such election can- not be defeated by showing that a small portion only of the electors were actually aware of the vacancy, or cast their votes to fill it.3 But this would not be the case if either the time or the distinct and vieible admixture of African vote as usual. Wheat v. Smith, 50 Ark. blood, nor shall they be liable to dama- '266. ges by reason of such rejection." Other ' People v. Cowles, 13 N. Y. 350; Feo- provisions of the act plainly discriminated pie v. Brenahm, 8 Cal. 477 ; State v. against the class of voters mentioned, and Jones, 19 Ind. 356 ; People v. Hartwell, it was held to be clearly unreasonable, 12 Mich. 508 ; Dishon v. Smith, 10 Iowa, partial, calculated to subvert or impede 212 ; State v. Orvis, 20 Wis. 235 ; State the e.xercise of the right of suffrage by «. Goetze, 22 Wis. 363 ; State v. Skir- this class, and therefore void. Monroe v. ving, 19 Neb. 497. The case of Foster Collins, supra. v. ScarfE, 15 Ohio St. 532, would seem 1 Opinions of Judges, 7 Mass. 523 ; to be contra. A general election was to Opinions of Judges, 15 Mass. 537. be held, at which by law an existing va- 2 People V. Porter, 6 Cal. 26 ; McKune cancy in the office of judge of probate V. Weller, 11 Cal. 49; People v. Martin, was required to be filled. The sheriff, 12 Cal. 409 ; Jones v. State, 1 Kan. 273 ; however, omitted all mention of this of- Barry v. Lauck, 6 Cold. 588 ; Stephens v. flee in his notice of election, and the People, 89 III. 337. So if notice is given voters generally were not aware that a but not as the law; requires : State v. vacancy was to be filled. Nominations Echols, 20 Pao. Rep. 523 (Kan.) ; or if it were made for the other offices, but none fails to specify time and place. Morgan v. for this, but a candidate presented hira- Gloucester, 44 N. J. L. 137. But such in- self for whom less than a fourth of the formalities will not vitiate, if as many voters taking part in the election cast bal- 760 CONSTITUTIONAL LIMIT pie V. Pease, 27 N. Y. 45, 81. It was held in People v. Cicott, 16 Mich. 283, that until it was distinctly shown that the elector waived his privilege of secrecy, 764 CONSTITUTIONAL LIMITATIONS. [cH. xvn. Every ballot should be complete in itself, and ought not to require extrinsic evidence to enable the election officer to deter- mine the voter's intention. Perfect certainty, however, is not required in these cases. It is sufficient if an examination leaves no reasonable doubt upon the intention, and technical accuracy is never required in any case. The cardinal rule is to give effect to the intention of the voter, whenever it is not left in uncertainty ; ^ but if an ambiguity appears upon its face, the elector cannot be received as a witness to make it good by testifying for whom or for what office he intended to vote.^ The ballot in no case should contain more names than are authorized to be voted for, for any particular office, at that elec- tion ; and, if it should, it must be rejected for the obvious impos- sibility of the canvassing officers choo^ng from among the names on the ballot, and applying the ballot to some to the exclusion of others. The choice must be made by the elector himself, and be expressed by the ballot. Accordingly, where only one supervisor was to be chosen, and a ballot was deposited having upon it the any evidence as to the character or con- tents of his ballot was inadmissible. It was also held that where a voter's quali- fication was in question, but his want of right to vote was not conceded, the privi- lege was and must be the same ; as other- wise any person's ballot might be inquired into by simply asserting his want of quali- fication. In State v. OKn, 23 Wis. 319, it was decided that where persons who had voted at an election had declined to tes- tify concerning their qualifications, and how they liad voted, it was competent to prove their declarations that they were unnaturalized foreigners, and had voted a particular way. Compare State i^. Hilraantel, 23 Wis. 422. In People t>. Thacher, 55 N. Y. 825, tfie evidence of voters as to how they voted was received, and as they did not object to giving it, it was held proper. See on this suhject McCrary's Law of Elections, §§ 194, 195. 1 People V. Matteson, 17 111. 167 ; Peo- ple B.€ook, 8 N. T. 67 ; State v. Elwood, 12 Wis. 551 ; People v. Bates, 11 Mich. 862 ; Newton v. Newell, 26 Minn. 529. '« People V. Seamati, 5 Denio, 409. The mental purpose of an elector is not provable ; it must be determined by his acts. Peopile ». Saxton, 22 N. Y. 309; Beardstown v. Virginia, 76 111. 34. But see McKinnoD v. People, 110 111. 305; Ereitz v. Behrensmeyer, 125 111. 141. And where the intent is to be gathered from the ballot, it is a question of law, and cannot be submitted to the jury as one of fact. People v. McManus, 34 Barb. 620. " In canvassing votes of electors their in- tentions must be a;«certained from their ballots, wliitih must be counted to accord with such intentions. If the ballots ex- press such intentions beyond reasonable doubt, it is sufficient, without regard to technicall inaccuracies, or the form adopted by the voter to express Ms intentions. Of course the language of a ballot is to be construed in the Ught ■oi all facts con- nected with the election; thus, the office to be filled, the names of the candidates voted for, or tlie subject contemplated in the proposition submitted to the electors, and the like, may be considered to aid in discovering the intentions of the voter." Beek, J., in Hawes ». Miller, 56 Iowa, 395, 397. See Railroad Co. «. Bearss, 39 Ind. 698. If a voter marks out tJie name of a eandida)te for a certain office and writes opposite it the name of another person, the vote must be counted for the latter for that office; thougli in fact lie is a can- didate, not for it, but for some other office. The intention of the voter mi»t be ascertained from the face of the ballot. ITentono. Scott, 20 Pac. Eep. 95 (Oreg.). CH. X\ai.] THE EXPRESSION OF THE PQBULAJl WILL. 765 names of two persons for that office, it was held that it must be rejected for ambiguity .^ It has been decided, however, that if a voter shall write a name upon a printed ballot,, in connection with ,the title to an office, this is such a designation of the name written for that office as sufficiently to demonstrate his intention, even though he omit to strike off the printed name of the opposing candidate. The writing in such a case, it is held, ought to pre- vail as the highest evidence of the voter's intentioni, and the failure to strike off the printed name will be regarded as an accidental oversight.^ The name on the ballot should be clearly expressed, and ought to be given fully. Errors in spelling, however, will not defeat the > People V. Seaman, 6 Denio, 409. See also Attorney-General »,Ely, 4 Wis. 420; People V. Loomis^ 8 Wend. 396 ; People V. Cook, 14 Barb. 269> and 8 N. Y. 67 ; State V. Gnffey, 5 Neb. 161. Such a vote, however, could not be' rejected as to candidates for other offices regularly named upon the ballot ; it would be void only as to the particular office for which the duplicate ballot was cast.. Attorney- General V. Ely, 4 Wis. 420; Perkins v. Carraway, 59 Miss. 222. If the name of a candidate for an office is given more than once,, it is proper to count it as one ballot, instead of rejecting, it as illegally thrown. People u. Holden, 28 Gal. 123; State V. Pierce, 35 Wis. 93. 2 People V. Saxton, 22 N. Y. 309; Brown v. McCoUum, 76 Iowa, 479. This ruling suggests this query,: Suppose at an election where printed slips containv ing the names of candidates, witlii a designation of the office, are supplied to voters, to be pasted, over the names of opposing candidates, — as is very common, — a ballot should be found id the box containing the names of a cans- didate for one office,,— say the county clerk, — with a designation of the office pasted over the name of a candidate for some other office, — say coroner ; so that the ballot would contain the names of two persons for county clerk, and of none for coroner. • In such a case, is the slip the highest evidence of the intention of the voter as to who should receive his suffrage for county clerk, and must it be counted for that office ? And if so, then does not the ballot also show the in- tention of the elector to cast his vote for the person for coroner whose name is thus accidentally pasted over, and should it. not be counted for that person ? The case of People v. Saxton would seem to-be opposed to People v. Seaman, 5 Denio, 409, where the court refused to allow evidence to be given to explain the ambiguity occasioned by the one name being placed upon the ticket, without the other being erased. " The intention of the elector cannot be thus inquired into, when it. is- opposed or hostile to the paper ballot which he has deposited in the hair lot-box. We might with the same pro- priety permit it to be proved that he intended to vote for one man, when his ballot was cast for another ; a species of proof not to be tolerated." Per Whittle- sei/,.3: See also Newton v. NeweUr 26 Minn. 529. The case of Peopleu. Cicott, 16 Mich. 283). is also opposed to People v. Saxton,. In the Michigan case, a slip for the office of sheriff was pasted over the name of the candidate for another county office, so that the ballot contained the names, of two candidates for sheriff. It was argued that the slip should be counted as the best evidence of the voter's inten^ tion ; but the court held that, the ballot could be counted for neither candidate, because of its ambiguity. And a like rule is laid down as to a provision in the Illinois Constitution which requires that, if more persons are designated for any office than there are candidates to be elected, such part of the ticket shall not be counted for either. This prpvision is obligatory where only one name is printed on the ticket, and it remains unerased and another is written in. Ereitz v. Behrensmeyer, 125 111. 141. 766 CONSTITUTIONAL LIMITATIONS. [CH. xvn. ballot, if the sound is the same ; ^ nor abbreviations,^ if such as are in common use and generally understood, so that there can be no reasonable doubt of the intent. And it would seem that where a ballot is cast which contains only the initials of the Chi'istian name of the candidate, it ought to be sufficient, as it designates the person voted for with the same certainty which is commonly met with in contracts and other private writings, and the intention of the voter cannot reasonably be open to any doubt.^ 1 People V. Mayworm, 5 Mich. 146; Attorney-General v. Ely, 4 Wis. 420; Gumm V. Hubbard, 97 Mo. 311; Kreitz Ti. Behrensmeyer, 125 HI. 141. , 2 People u. Ferguson, 8 Cow. 102. See also, upon this subject. People v. Cook, 14 Barb. 259, and 8 N. Y. 67 ; and People v. Tisdale, 1 Doug. (Mich.) 59. » In People v. Ferguson, 8 Cow. 102, it was held that, on the trial of a con- tested election case before a jury, ballots cast for H. F. Yates should be counted for Henry F. Yates, if, under the circum- stances, the jury were of the opinion they were intended for him ; and to arrive at that intention, it was competent to prove that he generally signed his name H. F- Yates ; that he had before held the same office for which tliese votes were cast, and was then a candidate again ; that the peo- ple generally would apply the abbrevia- tion to him, and that no other person was known in the county to whom it would apply. This ruling was followed in Peo- ple V. Seaman, 5 Denio, 409, and in People V. Cook, 14 Barb. 259, and 8 N. Y. 67. The courts also held, in these cases, that the elector voting the defective ballot might give evidence to enable the jury to apply it, and might testify that he intended it forthe candidate the initials of whose name he had given. In Attorney-General v. Ely, 4 Wis. 420, 429, a rule somewhatdifferent was laid down. In that case, Matthew H. Carpenter was candidate for the office of prosecuting attorney ; and besides the perfect ballots there were others cast for " D. M. Carpenter," " M. D. Carpenter," "M. T. Carpenter," and "Carpenter." The jury found that there was no lawyer in the county by the name of D. M. Car- penter, M. D. Carpenter, M. T. Carpenter, or whose surname was Carpenter, except the relator, Matthew H. Carpenter ; that the relator was a practising attorney of the county, and eligible to the office, and that the votes above mentioned were all given and intended by the electors for the relator. The court say : " How was the intention of the voter to be ascertained ? By reading the name on the ballot, and ascertaining who was meant and intended by that name ? Is no evidence admissible to show who was intended to be voted for under the various appellations, except such evidence as is contained in the bal- lot itself % Or may you gather the inten- tion of the voter from the ballot, explained by the surrounding circumstances, from facts of a general public nature connected with the election and the different can- didates, which may aid you in coming to the right conclusion? These facts and circumstances might, perhaps, be adduced so clear and strong as to lead irresistibly to the inference that a vote given for Car- penter was intended to be cast for Mat- thew H. Carpenter. A contract may be read by the light of the surrounding cir- cumstances, not to contradict it, but in order more perfectly to understand the intent and meaning of the parties who made it. By analogous principles, we think that these facts, and others of like nature connected with the election, could be given in evidence, for the purpose of aiding the jury in determining who was intended to be voted for. In New York, courts'have gone even farther than this, and held, that not only facts of pubho notoriety might he given in evidence to show the intention of the elector, but that the elector who cast the abbreviated bal- lot may be sworn as to who was intended by it. People v. Ferguson,' 8 Cow. 102. But this is pushing the doctrine to a great extent ; further, we think, than considera- tion of public policy and the well-being of society will warrant ; and to restrict the rule, and say that the jury must deter- mine from an inspection of the ballot it- self, from the letters upon it, aside from CH. XVII.] THE EXPEESSION OF THE POPULAR WILL. 767 As the law knows only one Christian name, the giving of an ini- tial to a middle name when the party has none, or the giving of a wrong initial, will not render the ballot nugatory ; ^ nor will a failure to give the addition to a name — such as " Junior " — render it void, as that is a mere matter of description, not con- stituting a part of the name, and if giv^n erroneously may be treated as surplusage.^ But where the name upon the ballot is all extraneous facts, who was intended to be designated by the ballot, is establisli- ing a principle unnecessarily cautious and limited. In the present case, the jury, from the evidence before them, found that the votes [above described] were, when given and cast, intended, by the electors who gave and cast the same re- spectively, to be given and cast for Mat- thew H. Carpenter, the relator. Such being the case, it clearly follows that they should be counted for him." See also State V. Elwood, 12 Wis. 651 ; Peo- ple u. Pease, 27 N. Y. 45, 84, per Denio, Ch. J. ; Talkington v. Turner, 71 III. 234; Clark V. Robinson, 88 111. 498 ; Kreitz v. Behrensmeyer, 125 111. 141 ; State v. Wil- liams, 95 Mo. 159; State v. Gates, 43 Conn. 533. In Wimmer v. Eaton, 72 Iowa, 374, ballots for F. W. were counted for E. W., who was a regular candidate, there being no one eligible or running named F. W. In Opinions of Judges, 88 Me., 559, it was held that votes could not be counted by the canvassers for a person of a dif- ferent name from that expressed by the ballot, even though the only difference consisted in the initial to the middle name. See also Opinions of Justices, 64 Me. 588. And in People v. Tisdale, 1 Poug. (Mich.) 59, followed in People v. Higgins, 3 Mich. 233, it was held that no extrinsic evidence was admissible on a trial in court in explanation or support of the ballot ; and that, unless it showed upon its face for whom it was designed, it must be rejected. And it was also held, that a ballot for " J. A. Dyer " did not show, upon its face, that it was in- tended for the candidate James A. Dyer, and therefore could not be counted with the ballots cast for him by his full name. This rule is convenient of application, but it probably defeats the intention of tho electors in every case to which it is applied, where the rejected votes could influence the result, — an intention, too, which we think is so apparent on the bal- lot itself, that no person would be in real doubt concerning it. In People v. Pease, 27 N. Y. 45, 64, in which Moses M. Smith was a candidate for county treasurer, Sel- den, J., says : " According to well-settled rules, the board of canvassers erred in re- fusing to allow to the relator the nineteen votes given for Moses Smith and M. M. Smith ; " and although we think this doc- trine correct, the cases he cites in support of it (8 Cow. 102, and 6 Denio, 409) would only warrant a juri/, not the canvassers, in allowing them ; or, at least, those cast for M. M. Smith. The case of People v. Tisdale, was again followed in People v. Cicott, 16 Mich. 283; the majority of the court, however, expressing the opinion that it was erroneous in principle, but that it had (for twenty-five years) been too long the settled law of the State to be disturbed^ unless by the legislature. In Massachusetts it is held that votes cast for " li. Clark " cannot be counted by the canvassers for Leonard Clark, though it is intimated that on a trial in court it might be shown that he was entitled to them. Clark v. County Examiners, 126 Mass. 282. 1 People ». Cook, 14 Barb. 259 ; 8 N. Y. 67 ; State v. Gates, 43 Conn. 533. But see Opinions of Judges, 38 Me. 597. 2 People 1). Cook, 14 Barb. 259 and 8 N. Y. 67. In this case, the jury found, as matter of fact, that ballots given for Benjamin Welch were intended for Ben- jamin Welch, Jr. ; and the court held that, as a matter of law, they should have been counted for him. It was not de- cided, however, that the canvassers were at liberty to allow the votes to Benjamin Welch, Jr. ; and the judge delivering the prevailing opinion in the Court of Ap- peals says (p. 81), that the State can- vassers cannot be charged with error in refusing to add to the votes for Benjamin Welch, Jr., those which were given for Beivjamin Welch, without the junior. 768 CONSTITUTIONAL LIMITATIONS. [cH. xvn. altogether different from that of a candidate, not the- same in sound and not a mere abbreviation, the evidence of the voter cannot be received to show for whom it was intended.^ Upon the question how far extrinsic evidence is admissible by way of helping out any imperfections, in the ballot, no rule can be laid down which can be said to have a preponderating weight, of authority in its support. We think evidence of such facts as may he called the circumstances surrounding the election — such as who were the candidates brought forward by the nominating con- ventions ; whether other persons of the same names resided im the district from which the officer was to be chosen, and if sa whether they were eligible or had been named for the office ; if a "They had not the means which the court possessed; on the trial of this issue, of obtaining, by evidence aliunde, the several county returns, the intention of the voters, and the identity of the candi- date with the name on the defective bal- lots. Their judicial power extends no further than to take notice of such facts of public notoriety as that certain well- known abbreviations are generally used to d^sigOBte particular names, and the like." . S'O' far as tliis case holds that the canvassers are not chargeable with error in not counting the ballots with the name Benjamin Welch for Benjamin Welch, Jr., it is, doubtless, correct. But sup- pose the canvassers had seen fit to do so, could the court hold they were guilty of usurpation in thus counting and allowing them ? Could not the canvassers take notice of such facts of general public notoriety as everybody else would take notice of? Or must they shut their eyes to facts which all other persons must see f The facts are these : Benjamin Welch, Jr., and James M. Cook are the candi- dates, and the only candidates, for State Treasurer. These facts are notoriousi and the two political parties make deter^ mined efforts to elect one or the other. Certain votes are cast for Benjamin Welch, with the descriptive word "jun- ior " omitted. The name is correct, but, as thus given, it may apply to some one else; but It would be to a person noto- riously not a candidate. Under these circumstances, when the facts of which it would be neoessaty to take notice have occurred under their own supervis- ion, and are universally known, so that the result of a contest in the courts could not be doubtful, is there any reason why the canvassers should not take notice of these facts, count the votes which a jury would subsequently be compelled to count, and thus save the delay, expense, vexation, and eonfusion of a contest ? If their judicial power extends to a deteiv mination of what are common and well- known abbreviations, and what names spelled differently are tdem sonans, why may it not also extend to the facts, o£ which there will commonly be quite as- little doubt, as to who are the candidates at the election over which they preside f It seems to us that in every case where the name given on the ballot, though in some particulars imperfect, is not differ- ent from that of the candidate, and facts of general notoriety leave no doubt in the minds of canvassers that it was intended for him, the canvassers should he at lib- erty to do what a jury would afterwards be compelted to do, — count it for such candidate. See People v. Kennedy, 37 Mich. 67. Compare Clark v. County Ex- aminers, 126 Mass. 282. 1 A vote for " Pence " cannot be shown to have been intended for "Spence." Hart V. Evans, 8 Pa. St. 13. Where, however, wrong initials were given to the Christian name, the ballots were allowed to the candidate ; the facts of public no- toriety being such as to show that they were intended for him. Attorney-Gen- eral V. Ely, 4 Wis. 420; This case goes farther in permitting mistakes in ballots to be corrected on parol evidence than any other in the books. Mr. McCrary, in his Law of Elections, devotes his sev- enth, chapter to a careful discussion of the general subject of imperfect ballots. CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 769 ballot waa printed imperfectly, how it came to be so printed, and the like — is admissible for the purpose of showing that an im- perfect ballot was intended for a particular candidate, unless the name is so different that to thus apply it would be to contradict the ballot itself ; or unless the ballot is so defective that it fails to show any intention whatever : in which cases it is not admis- sible.^ And we also think that in any case to allow a voter to testify by way of explanation of a ballot otherwise fatally defec- tive, that he voted the particular ballot, and intended it for a particular candidate, is exceedingly dangerous, invites corruption and fraud, and ought not to be suffered. Nothing is more easy than for reckless parties thus to testify to their intentions, with- out the possibility of their testimony being disproved if untrue ; and if one falsely swears to having deposited a particular ballot, unless the party really depositing it sees fit to disclose his knowl- edge, the evidence must pass unchallenged, and the temptation to subornation of perjury, when public oflSces are at stake, and when it may be committed with impunity, is too great to allow such evidence to be sanctioned. While the law should seek to give effect to the intention of the voter, whenever it can be fairly ascertained, yet this intention must be that which is ex- pressed in due form of law, not that which remains hidden in the elector's breast ; and where the ballot, in connection with such facts surrounding the election as would be provable if it were a case of contract, does not enable the proper officers to apply it to one of the candidates, policy, coinciding in this particular with the general rule of law as applicable to other transactions,, requires that the ballot shall not be counted for such candidate.^ The ballot should also sufficiently show on its face for what office the person named upon it is designated : b;it here again technical accuracy is not essential, and the office is sufficiently named if it be so designated that no reasonable doubt can exist as to what is meant. A great constitutional privilege — the high- est under the government — is not to be taken away on a mere 1 The text is quoted with approral in ^ This is substantially the New York Kreitz v. Behrensmeyer, 125 111. 141, but rule as settled by the later deeisions, if in that case after a recount had been we may accept the opinion of Denio, Ch. made and his ballot identified by its J., in People v. Pease, 27 N. Y. 45, 84, as number, a voter was allowed to testify taking the correct view of those decisions, that a certain slip upon it was not there See People v. Cicott, 16 Mich. 283, for a when it left his hands ; and that in writ- discussion of this point. Also State v. ing in a candidate's name, the name of Griffey, 5 Neb. 161 ; Clark v. County Ex- the office was partly obliterated by acci- aminers, 126 Mass. 282. dent, though, if the latter was wholly ob- literated, the vote could not be counted. 49 770 CONSTITUTIONAL LIMITATIONS. [CH. XVIL technicality, but the most liberal intendment should be made in support of the elector's action wherever the application of the common-sense rules which are applied in other cases will enable us to understand and render it effectual.^ Where more than one office is to be filled at an election, the law may either require all the persons voted for, for the several offices, to be so voted for by each elector on the same ballot, or it may provide a different receptacle for the ballots for some one office or set of offices from that which is to receive the others. In such a case each elector will place upon the ballot to be depos- ited in each box the names of such persons as he desires to vote for, for the different offices to be filled at the election for which that box is provided. If, for instance. State and township officers are to be chosen at the same election, and the ballots are to be kept separate, the elector must have different ballots for each ; and if he should designate persons for a township office on the State ballot, such ballot would, to that extent, be void, though the improper addition would not defeat the ballot altogether, but would be treated as surplusage, and the ballot be held good as a vote for the State officers designated upon it.^ But an accidental 1 In People v. Matteson, 17 111. 167, it was held that where " police magistrates " were to be chosen, Totes cast for " police justices " should be counted, as they sufficiently showed upon their face the intention of the voters. So where the question was submitted to the people, whether a part of one county should be annexed to another, and the act of sub- mission provided that the electors might express their choice by voting " for de- taching R ," or " against detaching B ," it was held that votes cast for "E attached,", and for "R de- tached," and " for division," and "against division," were properly counted by the canvassers, as the intention of the voters was clearly ascertainable from the ballots themselves with the aid of the extrinsic facts of a public nature connected with the election. State v. Elwood, 12 Wis. 661. So where trustees of common schools were to be voted for. It was held that votes for trustees of public schools should be counted; there being no trustees to be voted for at that elec- J,ion except trustees of common schools. People V. McManus, 34 Barb. 620. In Phelps D. Goldthwaite, 16 Wis. 146, where a city and also a county superintendent of schools were to be chosen at the same election, and ballots were cast for "su- perintendent of schools," without further designation, parol evidence of surround- ing circumstances was admitted to enable the proper application to be made of the ballots to the respective candidates. In Peck V. Weddell, 17 Ohio St. 271, an act providing for an election on the question of the removal of a county seat to the " town " of Bowling Green, was held not invalid by reason of Bowling Green being in law not a " town," but an incorporated village. In voting for a county seat it was held proper to count votes cast for a town by its popular, which differed from its legal, name. State v. Cavers, 22 Iowa, 343. Ballots in all such cases should receive such a construction as will make them valid if they are capable of it. Cattell V. Lowry, 46 Iowa, 478 ; State o. Metzger, 26 Kan. 895. And the elec- tion should not be set aside when the will of the people is fairly ascertainable from it. Holland e. Davis, 86 Ark. 446, 450. An obvious misprint of " 2 " for " 1 " before " district " will not avoid counting the votes cast in the first district Inglis V. Shepherd, 67 Cal, 469. « See People o. Cook, 14 Barb. 259 and 8 N. Y. 67. dH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 771 error in depositing the ballot should not defeat it. If an elector should deliver the State and township ballots to the inspector of election, who by mistake should deposit them in the wrong boxes respectively, this mistake is capable of being corrected' without confusion when the boxes are opened, and should not prevent the ballots being counted as intended. And it would seem that, in any case, the honest mistake, either of the officer or the elector, should not defeat the intention of the latter, where it was not left in doubt by his action.^ The elector is not under obligation to vote for every office to be filled at that election ; nor where several persons are to be chosen to the same office is he required to vote for as many as are to be elected. He may vote for one or any greater number, not to ex- ceed the whole number to be chosen. In most of the States a plurality of the votes cast determines the election ; in others, as to some elections, a majority ; but in determining upon a majority or plurality, the blank votes, if any, are not to be counted ; and a candidate may therefore be chosen without receiving a plurality or majority of voices of those who actually participated in the election. Where, however, two offices of the same name were to be filled at the same election, but the notice of election specified one only, and the political parties each nominated one candidate, and, assuming that but one was to be chosen, no elector voted for more than one, it was held that the one having a majority was alone chosen ; that the opposing candidate could not claim to be also elected, as having received the second highest number of votes, but as to the other office there had been a failure to hold an election.^ The Freedom of Elections. To keep every election free of all the influences and surround- ings which might bear improperly upon it, or might impel the electors to cast their suffrages otherwise than as their judgments would dictate, has always been a prominent object in American legislation.^ We have referred to fundamental principles which 1 People V. Bates, 11 Mich. 362. See 11 Mich. 111. Where officers, e. g. alder- Lanier v. Gallatas, 13 La. Ann. 175 ; Mc- men, one for a long terra and one for a Kinney v. O'Connor, 26 Tex. 5. But in- short term, are to be chosen, if there is spectors of election have no authority, on no designation of the terms upon the the assertion of a voter that he has voted ballot, it must be rejected. Milligan's by mistake in the wrong precinct, to with- App. 96 Pa. St. 222. draw from, the ballot-box and destroy a » For decisions bearing upon the free- ballot which he professes to identify as dom of elections and disorder or intimi- the one cast by him. Harbaugh v. Cicott, dation to control it, see Commonwealth 33 Mich. 241. v. Hoxey, 16 Mass. 384 ; Commonwealth ^ People V. Kent County Canvassers, v. McHale, 97 Pa. St. 397 ; Bespublica v. 772 CONSTITUTIONAL UMITATIONS. [cH. xvn. protect the secrecy of the -ballot, but in addition to these there are express constitutional and statutory provisions looking to the accomplishment of the same general purpose. It is provided by the constitutions of several of the States that bribery of an elector shall constitute a disqualification of the riglit to vote or to hold office ; 1 the treating of an elector, with a view to influence his vote, is in some States made an indictable offence ; ^ courts are not allowed to be held, for the two reasons, that the electors ought to be left free to devote their attention to the exercise of thil high trust, and that suits, if allowed on that day, might be used as a means of intimidation ; ^ legal process in some States, and for the same reasons, is not permitted to be served on that day ; intimidation of voters by threats or otherwise is made pun- ishable ; * and generally all such precautions as the people in framing their organic law, or the legislature afterwards, have thought might be made available for the purpose, have been pro- vided with a view to secure the most completely free and un- biassed expression of opinion that shall be possible. Betting upon elections is illegal at the common law, on grounds of public policy ; ^ and all contracts entered into with a view im- Gibbs, 3 Yeates, 429; s. c. 4 Dall. 253; State u. Franks, 38 Tex. 640; State v. Mason, 14 La. Ann. 505; United States V. Cruikshank, 92 U S. 542 ; Roberts v. Calvert, 98 N. C. 580 ; Patton v. Coates, 41 Ark. Ill ; Tarbox v. Suglirue, 36 Kan. 225; Brassard v. Langevin, 1 Can. Sup. Ct. 145. ' See the Constitutions of Maryland, Missouri, New Jersey, West Virginia, Oregon, California, Kansas, Texas, Ar- kansas, Rho.'le Island, Alabama, Florida, New York, Massachusetts, New Hamp- shire, Vermont, Nevada, Tennessee, Con- necticut, Louisiana, Mississippi, Ohio, Wisconsin. And it has been held on general principles that if an elector is in- duced to vote in a particular way by the payment or promise of any money or other valuable consideration for such vote, his vote should be rejected as ille- gal. State V. Olin, 23 Wis. 309. The power to reject for such a reason, how- ever, is not in the inspectors, but in the court in which the right to try the title to the office is vested. State t>. Purdy, 36 Wis. 213; 8. 0. 17 Am. Hep. 485. In this case it was held to be a sufficient reason for the court to reject votes, that they were obtained by means of the can- didate's promise to perform the duties of the office for less than the official salary. « State V. Eutledge, 8 Humph. 32. And see the provision in the Constitution of Vermont on this subject. A resort to this species of influence would generally, at the present time, prejudice the can- didate's interests instead of advancing them, but such has not always been the case. Mr. Madison, after performing val- uable service for the State in its legisla- ture, was defeated when offering liimself for re-election, in the very crisis of the Revolution, by the treating of his oppo- nent. See his Life by Rives, Vol. I. p. 179. The Constitution of Louisiana [1879] requires the General Assembly to forbid by law the giving away or selling of intoxicating drinks on the day of elec- tion within one mile of any election pre- cinct. Art. 190. ' But it was held in New York that the statute of that State forbidding the holding of courts on election days did not apply to the local elections. Matter of Election Law, 7 Hill, 194; Redfleld v. Florence, 2 E. D. Smith, 339. * As to wliat shall constitute intimida- tion, see Respublica o. Gibbs, 3 Yeates, 429; a. c. 4 Dall. 254, and cases p. 771, note 3. ' Bunn V. Riker, 4 Johns. 426 ; Lans- ing V. Lansing, 8 Johns. 464 ; Ball v. Gil- CH. XVII.] THE EXPKESSION OF THE POPULAB WILL. 773 properly to influence an election would be void for the same reason.^ And with a just sense of the danger of military inter- bert, 12 Met. 397; Laval v. Uyera, I Bailey, 486; Smyth o. McMastera, 2 Browne, 182 ; McAllister v. UofEman, 16 S. & U. 147 ; Stoddard v. Martin, 1 R. I. 1; Wroth o. Johnson, 4 H. & M. 284; Tarleton v. Baker, 18 Vt. 9 ; Davis v. Holbrook, 1 La. Ann. 176 ; Foreman v. Hardwick, 10 Ala. 316 ; Wheeler v. Spen- cer, 15" Conn. 28 ; Russell b. Pyland, 2 Humph. 131 ; Porter v. Sawyer, 1 Harr. 617; Hickerson v. Benson, 8 Mo. 8; Ma- dhir V. Moore, 2 Gratt. 267 ; Rust v. Gott, 9 Cow. 169; B. c. 18 Am. Dec. 497; Brush V. Keeler, 5 Wend. 250 ; Fislier v. Hildreth, 117 Mass. 568 ; McCrary, Law of Elections, § 149. A statute punishing betting on elections does not cover nomi- nating conventions. Com. v. Wells, 110 Pa. St. 463. 1 In Jackson v. Walker, 5 Hill, 27, it was held that an agreement by the de- fendant to pay the plaintiff $1,000, in con- sideration that the latter, who had built a log-cabin, would keep it open for political meetings to further the success of certain persons nominated for members of Con- gress, &c., by one of the political parties, ■was illegal within the statute of New York, which prohibited contributions of money " for any other purpose intended to promote the election of any particular person or ticket, except for defraying the iexpenses of printing and the circulation of votes, hand-bills, and other papers." This case is criticised in Hurley v. Van Wag- ner, 28 Barb. 109, and it is possible that it went further than either the statute or public policy would require. In Nichols r. Mudgett, 32 Vt. 546, the defendant be- ing indebted to the plaintiff, who was a candidate for town representative, the parties agreed that the former should use his influence for the plaintiff's election, and do what he could for that purpose, and that if the plaintiff was elected, that should be a satisfaction of his claim. Nothing was specifically said about the defendant's voting for the plaintiff, but he did vote for him, and would not have done so, nor favored hia election, but for this agreement. The plaintiff was elected. Held, that the agreement was void, and constituted no bar to a recovery upon the demand. Where two are candidates. and one withdraws in consideration of an agreement that the other, if chosen, will divide the fees, the agreement is void. Gray v. Hook, 4 N. Y. 449. An agree- ment that one for a iixed sum may per- form all the duties of an ofSce and receive all the emoluments is illegal. Hall v. Gavitt, 18 Ind. 390. So is an agreement between two candidates to divide emolu- ments and that the defeated one shall be deputy. Glover v. Taylor, 38 La. Ann. 684. A note executed in consideration of the payee's agreement to resign public office in favor of the maker, and use in- fluence in favor of the latter's appoint- ment as his successor, is void. Meacham B. Dow, 32 Vt. 721. See also Duke v. Ashbee, 11 Ired. 112; Hunter v. Nolf, 71 Pa. St. 182 ; Ham v. Smith, 87 Pa. St. 63 ; Robinson v. Kalbfleish, 5 Thomp. & C. (N. Y.) 212 ; McCrary, Law of Elections, § 192 A contract to assist by money and influence to secure the election of a candidate to a public office in considerar tion of a share of its emoluments, in the event of election, is void as opposed to public policy, and if voluntarily rescinded by the parties a recovery cannot be had of the moneys advanced under it. Mar- tin II. Wade, 37 Cal. 168. It has even been held that a public offer to the elec- tors by a candidate for a public office, whereby he pledged himself, if elected, to perform the duties of the office for less than the legal salary or fees, would invalidate his election. State v. Furdy, 36 Wis. 213; s. c. 17 Am. Rep. 485; Harvey v. Tama County, 53 Iowa, 228 ; Caruthers v. Russell, 53 Iowa, 846 ; b. c. 36 Am. Rep. 222; State ». Collier, 72 * Mo. 13; B. c. 37 Am. Rep. 417. See Cardigan v. Page, 6 N. H. 182; Alvin u: Collin, 20 Pick. 418; State v. Church, 5 Oreg. 375; s. c. 20 Am. Rep. 746. A contract to resign an office that another may be appointed is void. Meguire v. Corwine, 3 MacArthur, 81. If one ad- vances money to be used to further the election of a particular candidate irre- spective of qualifications, and it is not so used, he cannot maintain a suit to recover it back. Liness V. Hesing, 44 111. 113. In Pratt V. People, 29 111. 54, it was held that an agreement between two electors that 774 CONSTITUTIONAL Li'mTATIONS. [CH. XVIL ference, where a trust is to be exercised, the highest as well as the most delicate in the whole machinery of government, it has not been thought unwise to prohibit the militia being called out on election days, even though for no other purpose than for enrolling and organizing them.^ The ordinary police is the peace force of the State, and its presence suggests order, individual safety, and public security ; but when the military appear upon the stage, even though composed of citizen militia, the circum- stances must be assumed to be extraordinary, and there is always an appearance of threatening and dangerous compulsion which, might easily interfere seriously with that calm and unimpassioned discharge of the elector's duty which the law so justly favors. The soldier in organized ranks can know no law but such as is given him by his commanding officer ; and when he appears at the polls, there is necessarily a suggestion of the presence of an enemy against whom he may be compelled to exercise the most extreme and destructive force; and that enemy must generally be the party out of power, while the authority that commands the force directed against them will be the executive authority of the State for the time being wielded by their opponents. It is con- sequently of the highest importance that the presence of a military force at the polls be not suffered except in serious emergencies, when disorders exist or are threatened for the suppression or prevention of which the ordinary peace force is insufficient ; and any statute which should provide for or permit such presence as a usual occurrence or except in the last resort, though it might not be void, would nevertheless be a serious invasion of constitu- tional right, and should not be submitted to in a free government without vigorous remonstrance.^ they should "pair off," and both abstain deliberations or action of electors, except from voting, was illegal, and the inspec- in the last necessity, was fearfully illus- tors could not refuse to receive a vote of trated In the case of the " Manchester one of the two, on the ground of his Massacre," which occurred in 1819. An agreement. An election upon the ques- immense meeting of radical parliamentary tion of the removal of a county seat is reformers, whose objects and purposes not invalidated by Inducements held out appeared threatening to the government, by the several localities ; such as the offer was charged upon by the military, with to erect the county buildings, &c. Di- some loss of life, and with injury to the shon .,. Smith, 10 Iowa, 212; Hawes v, persons of several hundred people. As Miller, 56 Iowa, 395 ; State v. Supervisors usual in such cases, the extremists of one of Portage, 24 Wis. 49 ; Wells v. Taylor, party applauded the act and compli- 5Mont. 202;NealB. Shinn, 49 Ark.227; mented the military, while the other State V. Elting, 29 Kan. 397 ; Hall v. Mar- party was eiasperated In the last degree, • shall, 80 Ky. 552. See State v. Purdy, by what seemed to them an unnecessary, 36 Wis. 213. arbitrary, and unconstitutional exercise I See Hyde v. Melvin, 11 Johns. 521. of force. The most bitter and dangerous = The danger, and, we may say also, feeling was excited throughout the eoun- the folly, of military interference with the try by this occurrence, and it is not too CH. XVII.] THE EXPEESSION OF THE POPULAR WILL. 775 The Elector not to he deprived of Ms Vote. That one entitled to vote shall not be deprived of the privilege by the action of the authorities is a fundamental principle. It has been held, on constitutional grounds, that a law creating a new county, but so framed as to leave a portion of its territory" unorganized, so that the voters within such portion could not participate in the election of county officers, was inoperative and void.^ So a law submitting to the voters of a county the ques- tion of removing the county seat is void if there is no mode undet the law by which a city within the county can participate in the election.^ And although the failure of one election pre- cinct to hold an election, or to make a return of the votes cast, might not render the whole election a nullity, where the electors of that precinct were at liberty to vote had they so chosen, or where, having voted but failed to make return, it is not made to appear that the votes not returned would have changed the re- sult,3 yet if any action was required of the public authorities preliminary to the election, and that which was taken was not such as to give all the electors the opportunity to participate, and no mode was open to the electors by which the officers might be compelled to act, it would seem that such neglect, constituting as it would the disfranchisement of the excluded electors pro hao vice, must on general principles render the whole election nuga- tory ; for that cannot be called an election or the expression of the popular sentiment where a part only of the electors have been allowed to be heard, and the others, without being guilty of fraud or negligence, have been excluded.* much to Bay that if disorders were threat- ' See Ex parte Heath, 3 Hill, 42; ening before, the government had done Louisville & Nashville R. E. Co. v. nothing in this way to strengthen its au- County Court of Davidson, 1 Sneed, 687; thority, or to insure quiet or dispabsion- Marshall v. Kerns, 2 Swan, 68 ; Beards- ate action. No one had been conciliated; town w. Virginia, 76 DI. 34. no one had been reduced to more calm * See Fort Dodge v. District Township, and deliberate courses ; but, on the other 17 Iowa, 85 ; Barry v. Lauck, 5 Cold, hand, even moderate men had been exas- 688. In People v. Salomon, 46 111. 415, perated and inclined to opposition by this it was held that where an act of the violent, reckless, and destructive display legislature, before it shall become opera- of coercive power. See Hansard's De- tive, is required to be submitted to the bates, Vol. XLI., pp. 4, 51, 230. vote of the legal electors of the district 1 People V. Maynard, 15 Mich. 463. to be affected thereby, if the election For similar reasons the act for the organ- which is attempted to be held is illegal ization of Schuyler County was held within certain precincts containing a ma- invalid in Lanning v. Carpenter, 20 N. Y. jority of the voters of tlie district, then 447. the act will not be deemed to have been 2 Attorney-General ». Supervisors of submitted to the required vote, and the St. Clair, 11 Mich. 63. For a similar result will not be declared upon the votes principle see Foster v. Scarff, 15 Ohio St. legally cast, adverse to what it would 632. have been had no illegality intervened. 776 CONSTITUTIONAL LIMITATIONS, [CH. XVIL If the inspectors of elections refuse to receive the vote of an elector duly qualified, they may be liable both civilly and crimi- nally for so doing : criminally, if they were actuated by improper and corrupt motives ; ^ and civilly, it is held in some of the States, even though there may have been no malicious design in so doing ;2 but other cases hold that, where the inspectors are vested by the law with the power to pass upon the qualifications of electors, they exercise judicial functions in so doing, and are entitled to the same protection as other judicial officers in the discharge of their duty, and cannot be made liable except upon proof of express malice.* Where, however, by the law under which the election is held, the inspectors are to receive the 'voter's ballot, if he takes the oath that he possesses the constitutional qualifications, the oath is the con- clusive evidence on which the inspectors are to act, and they are not at liberty to refuse to administer the oath, or to refuse the vote after the oath has been taken. They are only ministerial officers in such a case, and have no discretion but to obey the law and receive the vote.* The Conduct of the Election. The statutes of the different States point out specifically the mode in which elections shall be conducted ; but, although there are great diversities of detail, the same general principles govern them all. As the execution of these statutes must very often fall 1 As to common-law offences against Bevard v. HofEman, 18 Md. 479; Elbinu. election laws, see Commonwealth a. Mc- Wilson, 33 Md. 135; Friend v. Hamill Hale, 97 Pa. St. 397. For an Instance 34 Md. 298; Pike v. Magoun, 44 Mo. under a statute, see People o. Burns, 76 492 ; Perry v. Reynolds, 53 Conn. 527 ; Cal. 627. see State v. Daniels, 44 N. H. 883, and " Kilham ». Ward, 2 Mass. 236 ; Gard- Goetcheus v. Mathewson, 61 N. Y. 420. In ner ?). Ward, 2 Mass. 244, note; Lincoln the last case the whole subject is fully V. Hapgood, 11 Mass. 350 j Capen v. Fos- and carefully examined, and the au- ter, 12 Pick. 485; s. 0.23 Am. Dec. 632; tliorities analyzed. Compare Byler v. Gates V. Neal, 23 Pick. 308; Blanchard Asher, 47 111. 101; Elbin v. Wilson, 33 V. Stearns, 6 Met. 298 ; Larned v. Wheel- Md. 135 ; Murphy v. Ramsey, 114 u'. S. er, 140 Mass. 390; Jeffries v. Ankeny, 11 15. Under a statute rendering liable for Ohio, 372; Chrisman v. Bruce, 1 Duv. unreasonable refusal, the refusal must be 63 ; Monroe v. Collins, 17 Ohio St. 665 ; such as to seem unreasonable to reason- Gillespieu. Palmer, 20 Wis. 644; Long!), able, unprejudiced men. Sanders ». Long, 67. Iowa, 497. Getchell, 76 Me. 158; Pierce v. GetcheU, " Jenkins ». Waldron, 11 Johns. 114 ; Id. 216. Weoherley ». Guyer, 11 S. & R. 36; Gor- « Spriggins ». Houghton, 3 111. 377; don V. Farrar, 2 Doug. (Mich.) 411 ; State v. Robb, 17 Ind. 536 ; People ».' Peavey v. Robbins, 3 Jones (N. C), 339; Pease, 30 Barb. 588. And see People v. Caulfleld v. Bullock, 18 B. Mon. 494; Gordon, 6 Cal. 236; Chrisman v. Bruce, Miller v. Rueker, 1 Bush, 135 ; Chrisman 1 Duv. 63 ; Gillespie v. Palmer, 20 Wis! J). Bruce, 1 Duv. 63; Wheeler M.Patterson, 544; Goetcheus v. Mathewson 61 N Y 1 N. H. 88; Turnpikes;. Champney, 2 430. N. H. 199 ; Rail v. Potts, 8 Humph, 225; CH. XVII.] THE EXPRESSION OF THE POPULAB WILL. 777 to the hands of men unacquainted with the law and unschooled in business, it is inevitable that mistakes shall sometimes occur, and that very often the law will fail of strict compliance. Where an election is thus rendered irregular, whether the irregularity- shall avoid it or not must depend generally upon the effect the failure to comply strictly with the law may have had in obstruct- ing the complete expression of the popular will, or the production of satisfactory evidence thereof. Election statutes are to be tested like other statutes, but with a leaning to liberality in view of the great public purposes which they accomplish ; and except where they specifically provide that a thing shall be done in the manner indicated and not otherwise, their provisions designed merely for the information and guidance of the officers must be regarded as directory only, and the election will not be defeated by a failure to comply with them, providing the irregularity has not. hindered any who were entitled from exercising the right of suffrage, or rendered doubtful the evidences from which the result was to be declared. In a leading case the following irregularities were held not to vitiate the election : the accidental substitution of another book for the Holy Evangelists in the administration of an oath, both parties being ignorant of the error at the time ; the holding of the election by persons who were not officers de jure, but who had colorable authority, and acted de facto in good faith ; ^ the failure of the board of inspectors to appoint clerks of the election ; the closing of the outer door of the room where the election was held at sundown, and then permitting the persons within the room to vote, — it not appearing that legal voters were excluded by clos- ing the door, or illegal allowed to vote ; and the failure of tlie in- spectors or clerks to take the prescribed oath of office. And it was said, in the same case, that any irregularity in conducting an election which does not deprive a legal elector of his vote, or admit a disqualified person to, vote, or cast uncertainty on the result, and has not been occasioned by the agency of a party, seeking to derive a benefit from it, should be overlooked in a proceeding to try the right to. an office depending on such election.2 This rule is an eminently proper one, and it furnishes 1 As to what constitutes an officer de authorities referred to in these cases facto, the reader is referred to the careful severally ; and to cases, supra, pp. 750, opinion in State v. Carroll, 88 Conn. 449 ; 751, notes. Also Cooley on Taxation, s. c. 9 Am. Rep. 409. Also to Fowler v. 184-186 ; MoCrary's Law of Elections, Beebe, 9 Mass. 231 ; Tucker v. Aiken, 7 §§ 75-79. N. H. 113 ; Commonwealth v. McCombs, " People v. Cook, 14 Barb. 259, and 8 56 Pa. St. 436 ; Fenelon v. Butts, 49 N. Y. 67. To the same effect, see CUfton Wis. 342 ; Ex parte Strang, 21 Ohio St. t>. Cook, 7 Ala. 114; Truehart ». Addicks, 610; Kimball v. Alcorn, 45 Miss. 151, and 2 Tex. 217; Oishon v. Smith, 10 Iowa, 778 CONSTITUTIONAL LIMITATIONS. [CH. XVII. a very satisfactory test as to what is essential and what not in election laws.^ And where a party contests an election on the 212 ; Attorney-General v. Ely, 4 Wis. 420 ; State V. Jones, 19 Ind. 356 ; People v. Higgins, 3 Mich. 233 ; Gorham v. Camp- bell, 2 Cal. 135; People v. Bates, 11 Mich. 362 ; Taylor v. Taylor, 10 Minn. 112 ; Peo- ple V. McManus, 84 Barb. 620 ; Whipley V. McCune, 12 Cal. 352; Bourland v. Hil- dreth, 26 Cal. 161 ; Day v. Kent, 1 Oreg. 123 ; Piatt v. People, 29 111.54 j Dupage Co. V. People, 65 111. 360; Hodge v. Linn, 100 111. 397; Ewing ». Filley, 43 Pa. St. 384; Howard v. Shields, 16 Ohio St. 184; Fry V. Booth, 19 Ohio St. 25; State v. Stumpf, 21 Wis. 679 ; McKinney i). O'Connor, 26 Tex. 6; Sprague v. Norway, 31 Cal. 173 ; Sheppard's Election Case, 77 Pa. St. 295 ; Wheelock's Election Case, 82 Pa. St. 297 ; Barnes w. Pike Co., 51 Miss. 305 ; State v. O'Day, 69 Iowa, 368. In Ex parte Heath, 3 Hill, 42, it was held that where the statute required the inspectors to certify the result of the election on the next day thereafter, or sooner, the. certificate made the second day thereafter was sufficient, the statute as to time being directory merely. In People v. McManus, 34 Barb. 620, it was held that an election was not made void by the fact that one of the three inspectors was by the statute dis- qualified from acting, by being a candi- date at the election, the other two being qualified. In Sprague v. Norway, 31 Cal. 173, it was decided that where tlie judges of an election could not read, and for that reason a person who was not a member of the board took the ballots from the box, and read them to the tellers, at the request of the judges, the election was not affected by the irregularity. In sev- eral cases, and among others the follow- ing, the general principle is asserted that any irregularities or misconduct, not amounting to fraud, is not to be suffered to defeat an election unless it is made to appear that the result was thereby changed. Loomis v. Jackson, 6 W. Va. 613, 692; Morris v. Vanlaningham, 11 Kan. 269 ; Supervisors of Da Page v. People, 65 111. 360 ; Chicago ». People, 80 111. 496 ; People v. Wilson, 62 N. Y. 186; State V. Burbridge, 3 Sou. Rep. 869 (Fla.). If the election is fair and the court hon- est, it is not fatal that the election officers were not properly qualified: Quinn v. Markoe, 87 Minn. 439 ; Swepston v. Bar- ton, 39 Ark. 649; Wells v. Taylor, 5 Mont. 202: contra, Walker v. Sanford, 78 Ga. 165 J nor that unauthorized per- sons helped in the counting. Roberts v. Calvert, 98 N. C. 680. The failure to hold the poll open as long as the law re- quires may not be fatal if no one lost his vote in consequence. Cleland v. Porter, 74 III. 76 ; Swepston v. Barton, 39 Ark. 649. See Kuykendall v. Barker, 89 UL 126. And a candidate who participates in the election actually held will not be allowed to question its validity on that ground. People v. Waite, 70 IlL 25. But where the law gave three hours for an election and the polls were closed in forty minutes, the proceedings were held in- valid. State V. Wollera, 37 Iowa, 131. All votes received after the polls should be closed are illegal. Varney v. Justice, 86 Ky. 596. And where the law required three judges and two clerks of an elec- tion, and only one of each was provided, it was held that this was not a mere irregularity and the election was void. Chicago, &c. R. R. Co. i.. Mallory, 101 III. 683. 1 This rule has certainly been applied with great liberality, in some cases. In People V. Higgins, 3 Mich. 283, it was held that the statute requiring ballots to be sealed up in a package, and then locked up in the ballot-box, with the ori- fice at the top sealed, was directory merely ; and that ballots which had been kept in a locked box, but without the ori- fice closed or the ballots sealed up, were admissible in evidence in a contest for an office depending upon this election. This case was followed in People v- Cicott, 16 Mich. 283, and it was held that whether the ballots were more satisfactory evi- dence than the inspector's certificates, where a discrepancy appeared between them, was a question for the jury. See also Fowler v. State, 68 Tex. 30. In Morril v. Haines, 2 N. H. 246, the statute required State officers to be chosen by a check-list, and by delivery of the bal- lots to the moderator in person ; and it was held that the requirement of a check- list was mandatory, and the election in the town was void if none was kept. The CH. XVII.] THE EXPRESSION OF THE POPULAE WILL. 779 ground of these or any similar irregularities, he ought to aver and be able to show that the result was affected by them.^ Time and place, however, are of the substance of every election,^ and a failure to comply with the law in these particulars is not generally to be treated as a mere irregularity .^ What is a Sufficient Election. Unless the law mider which the election is held expressly re- quires more, a plurality of the votes cast will be sufficient to elect, notwithstanding these may constitute but a small portion of those who are entitled to vote,* and notwithstanding the voters generally may have failed to take notice of the law requiring the election to be held.^ decisioa was put upon the ground that the check-list was provided as an Impor- tant guard against indiscriminate and il- legal voting, and4he votes given by bal- lot without this protection were therefore as much void as if given viva voce. 1 Lanier «. Gallatas, 13 La. Ann. 175; People V. Cieott, 16 Mich. 283 ; Taylor o. Taylor, 10 Minn. 107 ; Dobyns v. Weadon, 50 Ind. 298. 2 Dickey v. Hurlburt, 5 Cal. 343; Knowles v. Yeates.Sl CaL 82; Walker v. Sanford, 78 Ga. 165; Williams ... Potter, 114 111. 628. An election adjourned with- out warrant to another place, as well as an election Iield without the officers re- quired by law, is void. Commonwealth V. County Commissioners, 6 Rawle, 75. An unauthorized adjournment of the elec- tion for dinner — It appearing, to have been in good faith, and no one having been deprived of his vote thereby — will not defeat the election. Fry v. Booth, 19 Ohio St. 26. Adjourning an election in good faith to another polling place will not necessarily avoid it. Farrington v. Turner, 53 Mich. 27. Where voting had been done at a church, and the building was moved three-quarters of a mile, an election held at the new place is valid, no one being prevented from voting by the clinnge. Steele v. Calhoun, 61 Miss. 656. So of a change of two hundred feet. Si- mons V. People, 119 111. 617. See also Stem- per V. Higgins, 38 Minn. 222, where a sep- arate voting place from the township poll was, without authority of law but in good faith, kept in a village, and the vote was held legal. 3 The statute of Michigan requires the clerks of election to keep lists of the per- sons voting, and that at the close of the polls the first duty of the inspectors shall be to compare the lists with the number of votes in the box, and if the count of the latter exceeds the former, then to draw out unopened and destroy a suffi- cient number to make them correspond. In People v. Cieott, 16 Mich. 283, it ap- peared that the inspectors in two wards of Detroit, where a surplus of votes had been found, had neglected this duty, and had counted all the votes without draw- ing out and destroying any. The surplus in the two wards was sixteen. The ac- tual majority of one of the candidates over the other on the count as it stood (if certain other disputed votes were reject- ed) would be four. It was held that this neglect of the inspectors did not invali- date the election ; that had the votes been drawn out, the probability was that each candidate would lose a number propor- tioned to the whole number which he had in the box ; and this being a probability which the statute providing for the draw- ing proceeded upon, the court should apply it afterwards, apportioning the ex- cess of votes between the candidates in that proportion. * Augustin V. Eggleston, 12 La. Ann. 366; Gillespie v. Palmer, 20 Wis. 544. See also State v. Mayor, &c. of St. Joseph, 37 Mo. 270; State v. Binder, 38 Mo. 460; Jn re Plurality Elections, 15 R. L 617. 6 People V. Hartwell, 12 Mich. 608. In a case a little different, where the peo- ple were in doubt if there were any va- cancy to be filled, and only twenty-nine persons out of a poll of eight hundred cast 780 CONSTITUTIONAL LIMITATIONS. [CH. xvn. If several persons are to be chosen to the same office, the requi- site number -who shall stand highest on the list will be elected. But without such a plurality no one can be chosen to a public office ; and it is held in many cases that if the person receiving the highest number of votes was ineligible, the votes cast for him will still be effectual so far as to prevent the opposing candidate being chosen, and the election must be considered as having failed.^ The admission of illegal votes at an election will not necessa- rily defeat it ; but, to warrant its being set aside on that ground, it should appear that the result would have been different had they been excluded.'^' And the fact that unqualified persons are allowed to enter the room, and participate in an election, does not their votes to fill the vacancy, it was held that these twenty-nine votes did not make an election. State v. Good, 41 N. J. 296. Even if the majority expressly dissent, yet if they do not vote, the election by the minority will be valid. Uldknow v. "Wainwriglit,. 1 W. Bl. 229 ; Rex c.. Fox- croft, 2 Burr. 1017 ; Rex v. Withers, re- ferred to in same case. Minority repre- sentation in certain cases has been intro- duced in New York, Pennsylvania, and Illinois, and the principle is likely to find favor elsewhere. But such representa- tion has been held inconsistent with a constitutional provision that each elector shall be entitled to vote at all elections. State V. Constantine, 42 Ohio St. 437. 1 State V. Giles, 1 Chand. 112, Opin- ions of Judges, 38 Me. 598; State v. Smith, 14 Wis. 497 ; Saunders v. Haynes, 13 Cal. 146 ; Fish v. CoUens, 21 La. Ann. 289; Sublett v. Bedwell, 47 Miss. 266; s. c. 12 Am. Rep. 338 ; State v. Swearin- gen, 12 Ga. 24 ; Commonwealth v. Cluley, 56 Pa. St. 270; Matter of Corliss, 11 E. 1. 638 ; s. c. 23 Am. Rep. 5.38 ; State V. Vail, 53 Mo. 97 ; Barnum v. Oilman, 27 Minn. 466 ; s. c. 38 Am. Rep. 304 ; Dryden V. Swinburne, 20 W. Va. 89 ; Swepston v. Barton,' 39 Ark. 549. In People v. Mol- liter, 23 Mich. 341, a minority candidate claimed the election on the ground that the votes cast for his opponent, though a majority, were ineffectual, because the name was abbreviated. Held, that they were at least effectual to preclude the flection of a candidate who received a less number. And see Crawford v. Dun- bar, 52 Cal. 36. But it has been held that if ineligibility is notorious, so that the elec- tors must be deemed to have voted with full knowledge of it, the votes for an ineli- gible candidate must be declared void, and the next highest candidate is chosen. This is the English doctrine : King v. Hawkins, 10 East, 211 ; 2 Dow. P. C. 124 ; King V. Parry, 14 East, 549 ; Gosling v. Veley, 7 Q. B. 406 ; Rex v. Monday, 2 Cowp. 530; Rex v. Foxcroft, Burr. 1017; s. o. 1 Wm. Bl. 229; Reg. v. Coaks, 3 E. & B. 249 ; French v. Nolan, 2 Moak, 711. And see the following American cases : Price 0. Baker, 41 Ind. 572 ; Hatcheson v. Tilder, 4 H. & McH. 279 ; Commonwealth I'. Green, 4 Whart. 521 ; Gulick v. New, 14 Ind. 93 ; Carson v. McPhetridge, 15 Ind. 327 ; People v. Clute, 50 N, Y. 451 ; s. c. 10 Am. Rep. 508 ; State o. Johnson, 100 Ind. 489. Compare Barnum u. Oilman, 27 Minn. 466; s. c. 38 Am. Rep. 304. It would seem that, if the law which cre- ates the disqualification expressly de- clares all votes cast for the disqualified person void, they must be treated as mere blank votes, and cannot be counted for any purpose. Where, under the law cre- ating it, the disability concerns the hold- ing of tlie office merely, and it is not a disability to be elected, it is sufficient if the disability is removed before the term begins. State v. Murray, 28 Wis. 96 ; State V. Trumpf, 50 Wis. 103 ; Privett o. Bickford, 26 Kan. 52. Compare Searcy V. Grow, 15 Cal. 117; State v. Clarke, 8 Nev. 566. * Ex parte Murphy, 7 Cow. 153 ; First Parish in Sudbury v. Stearns, 21 Pick. 148 ; Blandford School District v. Gibbs, 2 Cush. 39; People u. Cicott, 16 Mich. 288; Judkins v. Hill, 50 N. H. 140; De- loach V. Rogers, 86 N. C. 857 ; Tarbox v. Sughrue, 36 Kan. 226 ; Swepston v. Bar- CH. xvil] the expression of the popular will. 781 justify legal voters in refusing to vote, and treating the election as void, but it will be held valid if the persons declared chosen had a plurality of the legal votes actually cast.^ So it is held that an exclusion of legal votes — not fraudulently, but through error in judgment — will not defeat an election ; notwithstanding the error in such a case is one which there was no mode of cor- recting, even by the aid of the courts, since it cannot be known with certainty afterwards how the excluded electors would have voted, and it would obviously be dangerous to receive and rely upon their subsequent statements as to their intentions, after it is ascertained precisely what effect their votes would have upon the result.2 If, however, the inspectors of election shall exclude legal voters, not because of honest error in judgment, but wilfully and corruptly, and to an extent that affects the result, or if by riots or otherwise legal voters are intimidated and prevented from voting, or for any other reasons the electors have not had opportunity for the expression of their sentiments through the ballot-box, the elec- tion should be set aside altogether, as having failed in the purpose for which it was called.^ Errors of judgment are inevitable, but fraud, intimidation, and violence the law can and should protect against. A mere casual affray, however, or accidental disturbance, without any intention of overawing or intimidating the electors, cannot be considered as affecting the freedom of the election ; * nor in any case would electors be justified in abandoning the ground for any light causes, or for . improper interference by others, where the officers continue in the discharge of their func- tions, and there is opportunity for the electors to vote.^ And, as we have already seen, a failure of an election in one precinct, or dis- order or violence which prevent a return from that precinct, will hot defeat the whole election, unless it appears that the votes which could not be returned in consequence of the violence would have ton, 39 Ark. 549. See Shields v. MeGre- erroneously denied the right ; but the gor, 91 Mo. 534. Votes received illegally election may be declared to have failed,,, will be rejected by the court in an action and a new election be ordered. Benner to try title to an ofiSce. State v. Hilman- v. Bennett, 21 Ohio St. 431. See also tel, 21 Wis. 566 ; Harbaugh v. Cicott, 33 Matter of Long Island R. R. Co., 19 Mich. 241 ; Clark v. Robinson, 88111. 498. Wend. 37 ; People v. Phillips, 1 Denio, 1 First Parish in Sudbury v. Stearns, 388 ; State v. McDaniel, 22 Ohio St. 21 Pick. 148. 354. 2 Newcum v. Kirtley, 13 B. Monr. 515. * Cush. Leg. Assemb. § 184; Roberts Pee Burke v. Supervisors of Monroe, 4 v. Calvert, 98 N. C. 580. W. Va. 371. * See First Parish in Sudbury v. 8 Where one receives a majority of Steams, 21 Pick. 148. Enough voters to all the votes cast, the opposing candidate change the result must have been pre- cannot be declared elected on evidence vented from voting in order to vitiate the that legal voters sufficient to change the election. Tarbox v. Sughrue, 36 Kan. result offered to vote for him, but were 225. And see cases, p. 771, note 8, ante. 782 CONSTITUTIONAL LIMITATIONS. [CH. XVIL changed the result.^ It is a little difficult at times to adopt the true mean between those things which should and those which should not defeat an election ; for while on the one hand the law should seek to secure the due expression of his will by every legal voter, and guard against any irregularities or misconduct that may tend to prevent it, so, on the other hand, it is to be borne in mind that charges of irregularity and misconduct are easily made, and that the dangers from throwing elections open to be set aside or controlled by oral evidence, are perhaps as great as amy in our system. An election honestly conducted under the forms of law ought generally to stand, notwithstanding individual electors may have been deprived of their votes, or unqualified voters been allowed to participate. Individuals may suffer wrong in such cases, and a candidate who was the real choice of the people may sometimes be deprived of his election ; but as it is generally im- possible to arrive at any greater certainty of result by resort to oral evidence, public policy is best subserved by allowing the election to stand, and trusting to a strict enforcement of the criminal laws for greater security against the like irregularities and wrongs in the future. The Canvass and the Return. If the election is purely a local one, the inspectors who have had charge of it will be expected^ to proceed immediately on the closing of the poll to canvass the votes and declare the result. It is commonly made their duty also, or the duty of their clerk, to issue to the person or persons appearing to be chosen a certificate or notification of his or their election, which will be presumptive evidence of the fact. It is not in the power of the inspectors by negleqting or refusing to give the proper certificate to defeat the will of the people, for the ballots determine the election and not the certificate, and the person chosen, from whom the certificate is withheld, may nevertheless proceed to qualify and take posses- sion of the office unless opposed by a de facto incumbent.^ If the election district comprises several precincts, the inspectors of the polls in each will make return in writing of the canvass made by them to the proper board of canvassers for the whole district, and if the election is for State officers, this district board will transmit the result of the district canvass to the proper State board, who will declare the general result.3 In all this, the several boards ^Ex parte Heath, 3 Hill, 42. See ante, making the returns will not, in the absence p. 7,5, and note. of fraud or changes in the ballots, war- ^ Ex parte Bmi\h.B^. C. 495; Govan rant throwing out the vote. Kellogg v. V. Jackson. 32 Ark. 553. Hickman, 21 Pae. Rep. 325 (Col.) : Fowl- Errors in certifying boxes, &c., and er v. State, 68 Tex. 30. See People i; CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 783 act for the most part in a ministerial capacity, and are not vested with judicial powers to correct the errors and mistakes that may have occurred with any officer who preceded them in the perform- ance of any duty connected with the election, or to pass upon any disputed fact which may affect the result.^ Each board is to re- ceive the returns transmitted to it, if in due form, as correct, and is to ascertain and declare the result as it appears by such re- turns ; '■^ and if other matters are introduced into the return than those which the law provides, they are to that extent unofficial and unauthorized, and must be disregarded.^ If a district or Higgins, 3 Mioh. 233 ; State v. Berg, 76 Mo. 136 ; Dixon v. On, 49 Ark. 238. 1 State V. Charleston, 1 S. C. n. s. SO. And see cases cited In the next note. While canvassers act in a ministerial ca- pacity only, and must declare the result on the face of the returns, it does not fol- low that they are to insist upon technical accuracy in the returns, and reject those which do not comply with the very letter of the law, and that they are compelled to act upon returns which by mistake have been made inaccurate, without af- fording an opportunity for correction. If, for example, in a return transmitted ' to tliem, the name of one of the persons voted for is erroneously given, and the election judges are ready to correct it, a great wrong is done if this is not per- mitted. The purpose of the canvass is to determine, record, and declare the act- ual will of the electors ; not to defeat it ; and when technicalities and mistakes are seized upon and taken advantage of for party or personal ends, and without other object or necessity, the public injury is very manifest. It is of the utmost im- portance that the public shall have con- fidence in the administration of the elec- tion laws; and whatever undermines that confidence invites fraud and violence. It is true that errors which creep into the returns may be obviated on a judicial trial; but that is a slow and expensive process, and ought not to be forced upon the parties except in cases where the re- sult upon the balloting is really in doubt. Errors which are immaterial should be overlooked, and those which are mate- rial ought to be corrected by the proper officers whenever it is practicable. ' Ex parte Heath, 3 Hill, 42 ; Brower V. O'Brien, 2 Ind. 423 ; People v. Hil- liard, 29 111. 413 ; People v. Jones, 19 Ind. 357; Mayo a. Freeland, 10 Mo. 629; Thompson v. Circuit Judge, 9 Ala. 838 ; People «. Kilduff, 15 111. 492 ; O'Ferrell v. Colby, 2 Minn. 180 ; People v. Van Cleve, 1 Mich. 362; People v. Van Slyck, 4 Cow. 297; Morgan v. Quackenbush, 22 Barb. 72 ; Uishon v. Smith, 10 Iowa, 212 ; People V. Cook, 14 Barb. 259, and 8 N. Y. 67 ; Hartt v. Harvey, 32 Barb. 55 j Attor- ney-General V. Barstow, 4 Wis. 567 ; At- torney-General V. Ely, 4 Wis. 420 ; State V. Governor, 25 N. J. 831 ; State v. Clerk of Passaic, 25 N. J. 364; Marshall v. Eerns, 2 Swan, 68 ; People ». Pease, 27 N. Y. 45; Phelps c. Schroder, 26 Ohio St. 649; State v. State Canvassers, 36 Wis. 498 ; Opinion of Justices, 53 N. H. 640; State v. Cavers, 22 Iowa, 343; State V. Harrison, 88 Mo 540; State v. Rod- man, 43 Mo. 256; State v. Steers, 44 Mo. 228 ; Bacon v. York Co., 26 Me. 491 ; Taylor w. Taylor, 10 Minn. 107 ; Opinion of Justices, 64 Me. 588 ; Prince i>. Skillin, 71 Me. 361 ; s. c. 36 Am. Rep. 325 ; Pee- bles V. County Com'rs, 82 N. C. 385; Clark V. County Examiners, 126 Mass. 282 ; State v. County Canvassers, 17 Fla. 29; Hagge v. State, 10 Neb. 51 ; State v. Wilson, 88 N. W. Rep. 81 (Neb.) ; Moore V. Kessler, 59 Ind. 162 ; State v. Hayne, 8 S. C. 67. They may not refuse to can- vass because a poll book is not returned as it should be. Patten v. Florence, 38 Kan. 501. They may and should correct an arithmetical blunder. State v. Hill, 20 Neb. 119. Legal returns received after the proper time should be counted. Cresap v. Gray, 10 Oreg. 345. ' Ex parte Heath, 3 Hill, 42. Papers in the poll book but not a part of the return cannot be considered. Simnn v. Durham, 10 Oreg. 62. Returns void on their face may be rejected. State v. State Canvassers, 36 Wis. 498. A certificate 784 CONSTITUTIONAL LIMITATIONS. [CH. XVII. State board of canvassers assumes to reject returns transmitted to it, on other grounds than those appearing upon its face, or to declare persons elected who are not shown by the returns to have received the requisite plurality, it is usurping functions, and its conduct will be reprehensible, if not even criminal.^ The action of such boards is to be carefully confined to an examination of the papers before them, and a determination of the result there- from, in the light of such facts of public notoriety connected with the election as every one takes notice of, and which may enable them to apply such ballots as are in any respect imperfect to the proper candidates or offices for which they are intended, provided the intent is sufficiently indicated by the ballot in connection with such facts, so that extraneous evidence is not necessary for tbis purpose.2 If canvassers refuse or neglect to perform their duty, they may be compelled by mandamus ; ^ though as these boards- are created for a single purpose only, and are dissolved by an adjournment without day, it has been held that, after such ad- journment mandamus would be inapplicable, inasmuch as there is no longer any board which can act.* But we should think the better doctrine to be, that if the board adjourn before a legal and complete performance of their duty, mandamus would lie to com- pel them to meet and perform it.^ But when the board them- selves have once performed and fully completed their duty, they have no power afterwards to reconsider their determination and come to a different conclusion.® to be made by a justice and inspectors People v. Supervisors, 12 Barb. 217 ; is void on its face if signed by the jus- State v. Rodman, 43 Mo. 256. tice alone. Perry v. Whltaker, 71 N. C. * To this effect Is State v. Gibbs, 13 475. Fla. 56 ; People v. Schiellein, 95 N. Y. 124. 1 Prince v. Skillin, 71 Me. 361 ; s. c. 86 In the last case it is held that the board Am. Rep. 325. But if not void on their continues as such, in spite of adjournment, face, the election board to which they are till its whole duty is ' performed. And returned have no jurisdiction to go be- see People v. Board of Registration, 17 hind them and inquire into questions of Mich. 427 ; People v. Board, &c. of Nan- fraud in the election. Phelps v. Schroder, kin, 15 Mich. 156 ; Lewis ». Oommission- 26 Ohio St. 549 ; Leigh v. State, 69 Ala. ers, 16 Kan. 102 ; Pacheco v. Beck, 52 261; Brown v. Com'rs Rush Co., 38 Cal. 3; State w. Hill, 20 Neb. 119. And Kan. 436; Opinion of Justices, 58 N. H. they may be compelled to make a legal 621. So of judges of the Supreme Court and proper canvass after they have made sitting as canvassers. Osgood e. Jones, one which was illegal and unwarranted. 60 N. H. 273, 282. State v. County Com'rs, 23 Kan. 264; 2 State V. Foster, 38 Ohio St. 599. State v. Hill, 10 Neb. 68 ; Stewart v. 8 Clark V. MoKenzie, 7 Bush, 528; Peyton, 77 Ga. 668; Siraoni). Durham, 10 Burke v. Supervisors of Monroe, 4 W. Oreg. 52. And if they have finished their Va. 371 ; State v. County Judge, 7 Iowa, work before the time allowed has elapsed, 186 ; Magee v. Supervisors, 10 Cal. 376 ; and while they still have the returns, they Kisler v. Cameron, 39 Ind. 488 ; Common- may be compelled to reconsider their wealth w. Emminger, 74 Pa. St. 479. action. State v. Berg, 76 Mo. 136. 4 Clark t>. Buchanan, 2 Minn. 846 j « Hadley f. Mayor, &o., 33 N. Y. 603; CH. XVII.] THE EXPRESSION OF THE POPULAR WILL. 785 Contesting Elections. As the election officers perform for the most part ministerial functions only, their returns, and the certificates of election which are issued upon them, are not conclusive in favor of the officers who would thereby appear to be chosen, but the final decision must rest with the courts.^ Tliis is the general rule, and the exceptions are of those cases where the law under which the can- vass is made declares the decision conclusive, or where a special statutory board is established with powers of final decision.^ State V. Warren, 1 Houston, 39 ; State v. Harrison, 38 Mo. 540; Swain v. McBae, 80 N. C. Ill ; State v. Lamberton, 37 Minn. 362; Myers v. Chalmers, 60 Miss. 772; People V. Eeardon, 3 N. Y. Supp. 560 ; People V. Board Canvassers, 46 Hun, 390. Compare Alderson v. Com'rs, 9 S. E. Eep. 863 (W. Va.). If they recount and give the certificate to another, such action is a mere nullity. Bowen v. Hixon, 45 Mo. 840 ; People v. Bobertson, 27 Mich. 116 ; Opinions of Justices, 117 Mass. 599 j State V. Donewirth, 21 Ohio St. 216. 1 State V. Justices of Middlesex, 1 N. J. 244; HiU «. Hill, 4 McCord, 277 ; Wam- mack V. HoUoway, 2 Ala. 31 ; State v. Clerk of Passaic, 25 N. J. 354; Marshall V. Kerns, 2 Swan, 68 ; Attorney-General V. Barstow, 4 Wis. 567; Attorney-Gen- eral V. Ely, 4 Wis. 420 ; People ». Van Cleve, 1 Mich. 362; People v. Higgins, 3 Mich. 233; Dishon v. Smith, 10 Iowa, 212; State v. Johnson, 17 Ark. 407; State V. Fetter, 12 Wis. 566; State v. Avery, 14 Wis. 122 ; People v. Jones, 20 Cal. 50; Newcum v. Kirtley, 13 B. Monr. 515; Commonwealth v. Jones, 10 Bush, 725; People v. Seaman, 5 Denlo, 409; People V. Cook, 8 N. Y. 67 ; People v. Matteson, 17 111. 167 ; Taylor v. Taylor, 10 Minn. 107; Calaveras County v. Brockway, 30 Cal. 325; Prince v. Skil- lin, 71 Me. 361; s. o. 36 Am. Rep. 325; Echols K. State, 56 Ala. 131 ; Rey- nolds V. State, 61 Ind. 892 ; Winter v. Thistlewood, 101 111. 450 ; Roberts v. Cal- vert, 98 N. C. 580. But see State v. Dortoh, 6 Sou. Rep. 777 (La.). In Geor- gia the governor's decision upon the elec- tion of officers commissioned by him is conclusive. Corbett v. McDaniel, 77 Ga. 644. A chief justice cannot be empow- ered to decide, pending a legal determina- tion of a contest, which claimant shall hold the office ad interim. If the power is executive it cannot be conferred on a judicial officer ; if judicial, it belongs to a court. In re Cleveland, 51 N. J. L. 319. An illegal election may be contested and set aside, even though but one person was voted for. Ex parte Ellyson, 20 Gratt. 10. The customary remedy is by writ of quo warranto, issued either on the relation of some citizen who shows an interest of his own in the question involved, or on relation of the Attorney- General in the interest of the State. State V. Tuttle, 53 Wis. 45. Statutory provision for contesting elections does not abrogate the remedy by quo warranto. People V. Londoner, 22 Pac. Rep. 764 (Col.), differing from State v. Francis, 88 Mo. 557. 2 See Grier v. Shackleford, Const. Eep. 642 ; Batman v. Megowan, 1 Met. (Ky.) 533 ; State v. Marlow, 15 Ohio St. 114 ; People V. Goodwin, 22 Mich. 496 ; Baxter V. Brooks, 29 Ark. 173; 8. o. 11 Am. Law Rev. 534; Hipp v. Charlevoix Co. Su- perv., 62 Mich. 456. For the proceedings in the State of New York in the canvass of votes for Governor in 1792, where the election of John Jay to that office was de- feated by the rejection of votes cast for .- him for certain irregularities, which, un- der the more recent judicial decisions, ought to have been overlooked, see Ham- mond's Political History of New York, ch. 3. The law then in force made the decision of the State canvassers final and conclusive. The Louisiana Return- ing Board cases will readily occur to the mind; but those must be regarded as standing by themselves, because the legis- lative provisions under which they were had were unlike any others known to our history, and assumed to confer extraordi- nary and irresponsible powers. 50 786 CONSTITUTIONAL LIMITATIONS. [OH. XVH. Whatever may be the office, an election to it is only made by the candidate receiving the requisite majority or plurality of the legal votes cast;^ and whoever, without such election, intrudes into an office, whether with or without the formal evidences of title, may be ousted on the proper judicial inquiry .2 The general doc- trine is here stated ; but in one important case it was denied that it could apply to the office of chief "executive of the State. The case was one in which the incumbent was a candidate for re-election, and a majority of votes was cast for his opponent. Certain spurious returns were, however, transmitted to the State canvassers, which, together with the legal returns, showed a plu- rality for the incumbent, and he was accordingly declared chosen. Proceedings being taken against him by quo warranto in the Supreme Court, he objected to the jurisdiction, on the ground that the three departments of the State government, the legisla- tive, the executive, and the judicial, were equal, co-ordinate, and independent of each other, and that each department must be and is the ultimate judge of the election and qualification of its own member or members, subject only to impeachment and ap- peal to the people ; that the question, who is rightfully entitled to the office of governor, could in no case" become a judicial ques- tion ; and that as the Constitution provides no means for ousting a successful usurper of either of the three departments of the government, that power rests exclusively with the people, to be exercised by them whenever they think the exigency requires it.^ There is a basis of truth in this argument ; the executive of the State cannot be subordinated to the judiciary, and may, in general, refuse obedience to writs by which this may be attempted.* But when the question is, who is the executive of the State, the judg'es have functions to perform, which are at least as important as those of any other citizens, and the fact that they are judges can never be a reason why they should submit to a usurpation. A 1 In some cases it is proTided by law, Albany, &c. K. R. Co., 57 N. Y. 161. that, if there is a tie vote, the two persons That it is not, is held in Ewing v. Filley, 43 receiving an equal and the highest num- Pa. St. 381 ; Commonwealth v. Leech, ber shall cast lots, and the election shall 44 Fa. St. 882 ; State v. Johnson, 26 Ark. be thereby determined. The drawing of 281 ; Wheat ». Smith, 50 Ark. 266 ; Wil- lots, however, would not preclude an in- liamson v. Lane, 52 Tex. 335 ; State v. quiry, at the suit of the State, into pre- Lewis, 51 Conn. 113. It is, however, con- vious irregularities. People v. Robert- ceded in Pennsylvania that, in a proceed- son, 27 Mich. 116. ing to forfeit an ofSce, jury trial is of * Whether jury trial in the case of right. See also cases, p. 505, note 1, ante. contested elections is matter of right, * Attorney-General v. Barstow, 4 Wis. seems to be made a question. That it is, 567. see State v. Burnett, 2 Ala. 140 ; People < See ante, p. 186. V. Cioott, 16 Mich. 283 ; dictum, People v. CH. xvil] the expression of the popular will. 787 successful usurpation of the executive office can only be accom- plished with the acquiescence of the other departments ; and the judges, for the determination of their own course, must, in some form, inquire into or take notice of the facts. In a controversy of such momentous import, the most formal and deliberate in- quiry that the circumstances will admit of is alone excusable ; and, when made and declared, the circumstances must be extraor- dinary in which it will not be effectual. In the case referred to, the usurper, though the candidate of a party embracing half the voters of the State, found himself utterly stripped of power by the decision of the court against him; public support fell away from him, and success in his usurpation became an impossibility. The decision guided and determined the popular sentiment, and perhaps saved the State from disorder, violence, and anarchy .^ Where, however, the question arises collaterally, and not in a direct proceeding to try the title to the office, the correctness of the decision of the canvassers cannot be called in question, but must be conclusively presumed to be correct ; ^ and where the election was to a legislative office, the final decision, as well by parliamen- tary law as by constitutional provisions, rests with the legislative body itself, and the courts, as we have heretofore seen,^ cannot interfere.* The most important question which remains to be mentioned relates to the evidence which the courts are at liberty to receive, and the facts which it is proper to spread before the jury for their consideration when an issue is made upon an election for trial at law. 1 Some attention to conflicts between see Hulseman v. Rens, 41 Pa. St. 396, tlie several departments of government where it was lieldtliat tlie court conld-not was given by the author in an essay on interfere summarily to set aside a certifi- Checks and Balances in Government, pub- cate of election, where it did not appear lished in the " International Review " for that the officers had acted corruptly, not- 1876. A question like that above men- withstanding it was shown to be based in tioned could not arise in respect to the part upon forged returns, presidency, as Congress must canvass and * See ante, p. 158, -note 1. See also declare the result. In some recent cases, Commonwealth v. Meeser, 44 Pa. St. 341. in which the office of governor was in * In Maine, where there were two con- question, though the decision was placed flicting bodies, each claiming the right to by the constitution in the hands of the exercise the legislative power, the judici- legislature, the final result was only de- ary asserted and enforced the right to de- termined by popular acquiescence. The cide between them. Prince u. SkiUin, 71 difficulty was that the legislative author- Me. 361 ; 8. o. 36 Am. Rep. 325. It is to be ity was as much in dispute as the execu- observed, however, that the governor had tive. The cases of South Carolina and already recognized the same body in Louisiana are here specially referred to. whose favor the court decided, and had a Morgan v. Quackenbush, 22 Barb, approved the act whose validity came in 72 ; Hadley v. Mayor, &c., 33 N. Y. 603 ; question in the court. Howard v. McDiarmid, 26 Ark. 100. And 788 CONSTITUTIONAL LIMITATIONS. [CH. XVIL The questions involved in every case are, first, has there been an election ? and second, was the party who has taken possession of the office the successful candidate at such election, by having received a majority of the legal votes cast?^ These are ques- tions which involve mixed considerations of law and fact, and the proper proceeding in which to try them in the courts is by quo warranto, when no special statutory tribunal is created for the purpose.^ Upon the first question, we shall not add to what we have al- ready said. When the second is to be considered, it is to be con- stantly borne in mind that the point of inquiry is the will of the electors as manifested hy their ballots ; and to this should all the evidence be directed, and none that does not bear upon it should be admissible. We have already seen that the certificates or determinations of the various canvassing boards, though conclusive in collateral in- quiries, do not preclude an investigation by the courts into the facts which they certify. They are ^rma/aeie evidence, how- ever, even in the courts ; ^ and this is so, notwithstanding altera- tions appear ; the question of their fairness in such a case being for the jury.* But back of this 'prima facie case, the pourts may go, and the determinations of the State board may be corrected by those of the district boards, and the latter by the ballots them- selves when the ballots are still in existence, and have been kept as required by law.^ If, however, the ballots have not been kept as required by law, and surrounded by such securities as the law has prescribed with a view to their safe preservation as the best 1 See cases cited, p. 783, note. Also is in contest has expired, it may be con- State V. The Judge, 13 Ala. 805; People tinned to a conclusion afterwards. State V. Robertson, 27 Mich. 116; Common- «. Pierce, 35 Wis. 93. wealth V. Emminger, 74 Pa. St. 479 ; » Marshall i-. Kerns, 2 Swan, 68 • Mor- Dobyns ». Weadon, 50 Ind. 298. The gan t;. Quackenbush, 22 Barb. 72; Cala- right to the office comes from the ballots, veras County y. Broekway 30 Cal 325 and not from the commission. State v. i State v. Adams, 2 Stew 231 See Draper, 50 Mo. 353. Where the officers State f. Hilmantel, 28 Wis. 422 acted fraudulently in the conduct of an » People v. Van Clere 1 Mich 362 • election, their returns may be rejected, People v. Higgins, 3 Mich. 283 ■ State v and the result be arrived at from other Clerk of Passaic, 25 N. J 354 -'state k" f^^^^ T.^^'w!^'' ^"P^^^'''"^^ "■ I^^"^' J«dge, &c., 13 Ala. 805; PeopI^ v. Cook, t!d 111. 405. Where returns are lost or 14 Barb. 259 ; s. c. 8 N. T 67 • People v defective, parol evidence of what the vote Cicott, 16 Mich. 288 ; Attorney-General rt \!:tT'°^^'- n'^'^V-.^rl'o' ^ "■ ^^y- ^ ^"^- *20; Owens „. State, 64 Ark. 266; Dixon «. Orr, 49 Ark. 238. if Tex. 500. Ballots which should have ballots cannot, from possible tampering, been destroyed under the law cannot be be admitted. Stemper v. Higgins, 88 used on a recount. State v. Bate, 70 ° P„;!.t ^ » 1, Tn ,». ^ '^''- ^°^' '^•'^ 1^''"°' 5^ al'^ays the best People V Matteson, 17 111. 167 ; Peo- evidence of the voter's action. Wheat v pie V. Cover, 50 111. 100. If the proceed- Ragsdale, 27 Ind. 191 ; People v. Holden mg IS commenced before the office which 28 Cal. 123; Searle v. Clark, 34 Kan 49* CH. XVII.] THE EXPEESSION OF THE POPULAR WILL. 789 evidence of the election, it ife^ould seem that they should not be received in evidence at all,i or, if received, that it should be left to the jury to determine, upon all the circumstances of the case, whether they constitute more reliable evidence than the inspec- tors' certificate,^ which is usually prepared immediately on the close of the election, and upon actual count of the ballots as then made by the officers whose duty it is to do so. Something has already been said regarding the evidence which can be received where the elector's ballot is less complete and perfect in its expression of intention than it should have been. There can be no doubt under the authorities that, whenever a question may arise as to the proper application of a ballot, any evidence is admissible with a view to explain and apply it which would be admissible under the general rules of evidence for the purpose of explaining and applying other written instruments. But the rule, as it appears to us, ought not to go further. The evidence ought to be confined to proof of the concomitant cir- cumstances ; such circumstances as may be proved in support or explanation of a contract, where the parties themselves would not be allowed to give testimony as to their actual intention, when unfortunately the intention was ineffectually expressed.^ And we have seen that no evidence is admissible as to how par- ties intended to vote who were wrongfully prevented or excluded from so doing. Such a case is one of wrong without remedy, so far as candidates are concerned.* There is more difficulty, how- ever, when the question arises whether votes which have been cast by incompetent persons, and which have been allowed in the canvass, can afterwards be inquired into and rejected because of the want of qualification. If votes were taken viva voce, so that it could always be deter- mined with absolute certainty how every person had voted, the objections to this species of scrutiny after an election had been held would not be very formidable. But when secret balloting is the policy of the law, and no one is at liberty to inquire how any elector has voted, except as he may voluntarily have waived his privilege, and when consequently the avenues to correct in- 1 People V. Sackett, 14 Mich. 320. But 2 People v. Cieott, 16 Mich. 283 ; Du- see People v. Hlggins, 3 Mich. 233. Bur- son v. Thompson, 32 La. Ann. 861 ; Peo- den of showing that ballots offered are pie v, Livingston, 79 N. Y. 279; People r. genuine is on the party offering them. Kobertson, 27 Mich. 116. Powell M. Holman, 50 Ark. 85; Fenton v. ' People v. Pease, 27 N. Y. 46, 84, per Seott, 20 Pac. Rep. 95 (Oreg.) ; Coglan v. Denio, Ch. J., commenting upon previous Beard, 67 Cal. 303, which see as to what New York cases. See also Attorney- is sufficient proof that they have not General v. Ely, 4 Wis. 420. been tampered with. * See anie, p. 781. 790 CONSTITUTIONAL LIMITATIONS. [CH. XVIL formation concerning the votes cast are carefully guarded against judicial exploration, it seems exceedingly . dangerous to permit any question to be raised upon this subject. For the evidence voluntarily given upon any such question will usually come from those least worthy of credit, who, if they have voted without legal right in order to elect particular candidates, will be equally ready to testify falsely, if their testimony can be made to help the same candidates ; especially when, if they give evidence that they voted the opposing ticket, there can usually be no means, as they will well know, of showing the evidence to be untrue.^ Moreover, to allow such scrutiny is to hold out strong temptation to usurpation of office, without pretence or color of right ; since the nature of the case, and the forms and proceedings necessary to a trial, are such that, if an issue may be made on the right of every individual voter, it will be easy, in the case of important elections, to prolong a contest for the major part if not the whole of an official term, and to keep perpetually before the courts the same excitements, strifes, and animosities which characterize the hustings, and which ought, for the peace of the community, and the safety and stability of our institutions, to terminate with the close of the poUs.^ Upon this subject there is very little judicial authority, though legislative bodies, deriving their precedents from England, where the system of open voting prevailed, have always been accustomed to receive such evidence, and have indeed allowed a latitude of inquiry which makes more to depend upon the conscience of the witnesses, and of legislative committees, in some cases, than upon the legitimate action of the voters. The question of the right to inquire into the qualifications of those who had voted at an elec- tion, on a proceeding in the nature of a quo warranto, was directly presented in one case to the Supreme Court of New York, and the court was equally divided upon it.^ On error to the Court of Appeals, a decision in favor of the right was rendered with the concurrence of five judges, against three dissentients.* The same question afterwards came before the Supreme Court of Michigan, and was decided the same way, though it appears from ' It has been decided in Wisconsin that test, he declares he voted the other way, where an unqualified person is called to and a deduction is made from the oppo- prove that he voted at an election, and site vote accordingly. See Beardstown declines to testify, the fact of his having v. Virginia, 76 111. 34. voted may be proved, and then his dec- 2 This is one reason, perhaps, why in larations may be put in evidence to show the case of State officers a statutory tri- how he voted. State v. Olin, 23 Wis. 309. bunal is sometimes provided with powers This may give the incompetent voter a of summary and final decision, double vote. First, he votes for the " People v. Pease, 30 Barb. 588. ticket of his choice, and then, on a con- 4 People v. Pease, 29 N. Y. 45. CH. XVII.] THE EXPKESSION OF THE POPULAR WILL. 791 the opinions that the court were equally divided in their views.^ To these cases we niust refer for the full discussion of the rea- sons influencing the several judges; but future decisions alone can give the question authoritative settlement.^ 1 People V. Cioott, 16 Mich. 283. See further the case of State v. Hilmantel, 23 Wis. 422, where it was decided that those who had voted illegally might be com- pelled to testify for whom they voted. The question was discussed but briefly, and as one of privilege merely. ^ Considerable stress was laid by the majority of the New York Court of Ap- peals on the legislative practice, which, as it seems to us, is quite too loose in these cases to constitute a safe guide. Some other rulings in that case also seem more latitudinarian than is warranted by sound principle and a due regard to the secret ballot system which we justly esteem so important. Thus, Selden, J., says : " When a voter refuses to disclose or fails to remember for whom he voted, I think it is competent to resort to cir- cumstantial evidence to raise a presump- tion in regard to that fact. Such is the established rule in election cases before legislative committees, which assume to be governed by legal rules of evidence (Cush. lifeg. Assem. §§ 199 and 200) ; and within that rule it was proper, in connec- tion with the other circumstances stated by the witness Loftis, to ask him for whom he intended to vote ; not, however, on the ground that his intention, as an independent fact, could be material, but on the ground that it was a circumstance tending to raise a presumption for whom he did vote." Now as, in the absence of fraud or mistake, you have arrived at a knowledge of how the man voted, when you have ascertained how, at the time, he intended to vote, it is diflicult to dis- cover much value in the elector's privi- lege of secrecy under this ruling. And if "circumstances" may be shown to de- termine how he probably voted, in cases where he insists upon his constitutional right to secrecy, then, as it appears to us, it would bo better to abolish altogether the secret ballot than to continue longer a system which falsely promises secrecy, at the same time that it gives to party spies and informers full license to invade the voter's privilege in secret and surrep- titious ways, and which leaves jurors, in the absence of any definite information, to act upon their guesses, surmises, and vague conjectured as to the contents of a ballot. Upon the right to inquire into the qualifications ofthose who have voted, in a proceeding by quo warranto to test the right to a public office, reference is made to the very full discussions by Justices Christiancy and Campbell, taking different views, in People v. Cicott, 16 Mich. 283, 294, 811. INDEX. THE FIGURES REFER TO THE TOP PAGING. ABBREVIATIONS, when ballots rendered inefEectual by, 766-768, AB INCONVENIENTI, doctrine of, in construction, 73, 82-85. ACCUSATIONS OF CRIME, are actionable /)er se, 518. self, not to be compelled, 379-386. how made with a view to investigation and trial, 374. See Personal Liberty. varying form of, cannot subject party to second trial, 401. ACCUSED PARTIES, testimony of, in their own behalf, 384-386. confessions of, 380-383. See Personal Liberty. ACQUIESCENCE, in irregulai organization of corporations, 309, 310. ACTION, against States, 17. against election officers for refusing to receive votes, 776. for negligent or improper construction of public works, 308, 309, 703. for property taken under right of eminent domain, 691-703. See Eminent Domain. for exercise of legislative power by municipal bodies, 253-257. for slander and libel, rules for, 518-525. modification of, by statute, 528. See Liberty of Speech and op the Press. rights in, cannot be created by mere legislative enactment, 452. nor taken away by legislature, 444-446. nor appropriated under right of eminent domain, 648. nor forfeited, except by judicial proceedings, 444-446. statutory penalties may be taken away before recovery of judgment, 444, n. 794 INDEX. ACTION — continued. limitation to suits, 447-450. statutes for, are unobjectionable in principle, 447. subsequent repeal of statute cannot revive rights, 356, 448. principle on which statutes are based, 449. cannot apply against a party not in default, 449. must give parties an opportunity for trial, 449, 450. for causing death by negligence. Sec, 715. ACTS OF PARLIAMENT, how far in force in America, 34-36. ACTS OF THE LEGISLATURE. See Statutes. ADJOURNMENT OF SUIT, from regard to religious scruples of party, 585, n. ADJOURNMENT OF THE LEGISLATURE, on its own motion, 1.57. by the governor, 157. ADMINISTRATION, conclusiveness of, though supposed intestate living, 61, n. ADMINISTRATORS, See Executoks and Administrators. ADMIRALTY JURISDICTION, exercise of, by the Revolutionary Congress, 8. conferred upon courts of United States, 17. ADMISSIONS, of accused parties as evidence, 380-383. See Confessions. ADVERTISEMENT, notice to foreign parties by, 497-500. not effectual to warrant a personal judgment, 498, 499. AGENCIES OF GOVERNMENT, not to be taxed, 28, 590-594. strict construction of, 231-234. States not liable for acts of, 17. AGREEMENTS. See Contracts. ALABAMA, divorces not to be granted by legislature, 129, n. exercise of the pardoning power restrained, 135, n. revenue bills to originate in lower house, 157, n. privilege of legislators from arrest, 160, n. bills, how to be signed, 163, n. legislative journals to be signed by presiding oflScer, 163 n. no law to embrace more than one object, to be expressed in title, 169, n. right of jury to determine the law in cases of libel, 394, n. protection of person and property by law of the land, 429, n. liberty of speech and the press in, 513, n. privilege of legislators in debate, 547, n. religious tests for o£Bce forbidden in, 575, n. persons conscientiously opposed to bearing arms excused, 586, n. private property not to be taken without compensation, 694, n. INDEX. 795 ALIENS, exclusion of, from suffrage, 41, 752. ALIMONY, payment of, cannot be ordered by legislature, 133. decree for, not valid unless process served, 499. AMBASSADORS, jurisdiction of United States courts in respect to, 17. AMENDMENT, of State constitutions, 32, 76, 77. of money bills, may be made by Senate, 157. of indictments, 327. of.statutes, 180-183. republication of statute amended, 180, 182, by implication, 183. at the same session of their passage, 183. of defective proceedings by legislation, 356, 456-471. AMERICAN COLONIES. See Colonies. AMUSEMENT, regulation of places of, 743. APPEAL, giving right of, retrospectively, 114, n. right of, may be taken away, 472. eSect of change in the law pending an appeal, 469. APPOINTMENT TO OFFICE. See Office. APPORTIONMENT, of powers between the States and the nation, 4. between the departments of the State government, 45-49, 51, 104-108. of taxes, 607. of debts and property on division of municipal corporations, 229, 230. See Taxation. APPRAISAL, of private property taken by the public, 691-703. APPRAISEMENT LAWS, how far invalid, 352. APPRENTICE, control of master over, 415. APPROPRIATION, of private property to public use, 642. See Eminent Domain. APPROVAL OF LAWS. See Governor. ARBITRARY ARRESTS, Ulegality of, 364. See Personal Liberty. ARBITRARY EXACTIONS, distinguished from taxation, 599. ARBITRARY POWER, unknown among common-law principles, 33. cannot be exercised under pretence of taxation, 599, 620, 621. 796 INDEX. ARBITRARY RULES, of construction, danger of, 74, 101, n. of presumption, 398, n. ARBITRATION, submission of controversies to, 492. ARGUMENTUM AB INCONVENIENTI, in constitutional construction, 73, 82-85. ARKANSAS, special statutes licensing sale of lands forbidden, 116, n. divorces not to be granted by the legislature, 129, n. exercise of the pardoning power restrained, 185, n. revenue bills to originate in lower house, 157, n. privilege of legislators from arrest, 160, n. limited time for introduction of new bills, 166, n. no law to embrace more than one object, to be expressed in title, 169, n. protection of person and property by the law of the land, 429, n. liberty of speech and of the press in, 512, n. privilege of legislators in debate, 547, n. religious tests for office forbidden in, 575, n. religious belief not to be test of competency of witness, 586, n. ARMS, right to bear, 427. exemption from bearing, of persons conscientiously opposed, 585, 586. ARMY, quartering in private houses, 378. jealousy of standing army, 427. ARREST, privilege of legislators from, 160. on criminal process. See Crimes. of judgment, new trial after, 400 and n. ART, WORKS OF, criticism of, how far privileged, 557. ARTICLES OF CONFEDERATION, adoption of, 9. why superseded, 9. ASSESSMENTS,. for local improvements, generally made in reference to benefits, 612, 613. special taxing districts for, 612, 627. not necessarily made on property according to value, 612. are made under the power of taxation, 613. not covered by the general constitutional provisions respecting taxation, 613. not unconstitutional to make benefits the basis for, 618, 620, 624 627, 631. apportionment necessary in cases of, 615. may be made in reference to frontage, 624. INDEX. 797 ASSESSMENTS —continued. but each lot cannot be compelled to make the improvement in front of it, 625. for drains, levees, &c., 627-629. in labor for repair of roads, 629. ATTAINDER, meaning of the term, 314. bills of, not to be passed by State legislatures, 24, 44, 314. cases of such bills, 315-318. bills of pains and penalties included in, 316. ATTORNEYS, exclusion of, from practice, is a punishment, 318. right to notice of proceedings therefor, 410, n., 498, n. laws requiring service from, without compensation, 406, 486. punishment of, for misconduct, 410. See Counsel. AUTHORS, not to be assailed through their works, 557. criticism of works of, how far privileged, 557, 558. B. BAIL, accused parties entitled to, 375, 376. unreasonable, not to be demanded, 377. on habeas corpus, 425. control of bail over principal, 415. BAILMENT. See Common Carriers. BALLOT, correction of abuses by, 230, n. system of voting by, generally prevails, 760. right of the elector to secrecy, 762. must be complete in itself, 764, 765. abbreviated names, 766. • how far open to explanation, 768, 769, 789. See Elections. BANKRUPTCY, power of Congress over, 12. legislation by the States, 29, 356. revival of debts barred by discharge, 356. BEARING ARMS, persons conscientiously opposed to, are excused, 585. constitutional right of, 427. BEASTS, police regulations regarding, 743. regulations making railway companies liable for killing, 714. 798 INDEX. BENEFITS, may be taken into account in assessments for local improvements, 612, 613. ■what may be deducted when private property is taken by the public, 701. BETTERMENT LAWS, principle of, 476. are constitutional, 478. owner cannot be compelled to improve his lands, 475. not applicable to lands appropriated by the public, 478, n. BETTING ON ELECTIONS, illegality of, 772. BEVERAGES, police regulations to prevent the sale of intoxicating, 716-720. BILL OF RIGHTS [English), a declaratory statute, 34, 312. BILL OF RIGHTS (National), not originally inserted in Constitution, 311. reasons for omission, 311. objections to Constitution on that ground, 313, 314. afterwards added by amendments, 314. BILL OF RIGHTS (State), generally found in constitution, 47. classes of provisions in, 47, 48. ■what prohibitions not necessary, 209. BILLS, LEGISLATIVE, constitutional provisions for three readings, 95-98, 167. title of, to express object, 96, 169-182. ■when they become la^ws, 155, n. including in, matter by reference, 167. See Legislature of the State. BILLS OF ATTAINDER, not to be passed by State legislature, 24, 44, 314. meaning of attainder, 314. cases of such bills, 315-318. BILLS OF CREDIT, States not to emit, 23. BILLS OF PAINS AND PENALTIES, included in bills of attainder, 316. BLASPHEMY, punishment of, does not violate religious liberty, 580-584. nor the liberty of speech, 518. published in account of judicial proceedings is not privileged, 550. BOATS, ferry, licensing of, 731. speed of, on navigable -waters, may be regulated by States, 732. BONA FIDE PURCHASERS, , not to be affected by retrospective legislation, 465, 470, n. INDEX. 799 BONDS, issue of, by municipalities in aid of internal improvements, 140, n., 263- 279. BOOKS, criticism of, how far privileged, 557. indecent, sale of, may be prohibited, 742. BOUNTIES, when earned, become vested rights, 472. payment of, to soldiers by municipal corporations, 274-279. BOUNTY SUBSCRIPTIONS, by municipal corporations, how far valid, 274-279. BRIDGES, erection of, by State authority over navigable waters, 730. See Navigable Waters. BUILDINGS, condemnation and forfeiture of, as nuisances, 718, 743. destruction of, to prevent spread of fires, 646, 739. appropriation of, under right of eminent domain, 642. BURIAL, right of, subject to control, 244, n. BURLESQUES, libels by means of, 521. BY-LAWS, of municipal corporations, 238-247. must be reasonable, 240. of school corporations, 223-225, n, must be certain, 243. must not conflict with constitution of State or nation, 238, 239. nor with statutes of State, 239. imposing license fees, 242, 243. C. CALIFORNIA, Mexican law retained in the system of, 38, n. divorces not to be granted by the legislature, 129, n. privilege of legislators from arrest, 160, n. no law to embrace more than one object, to he expressed in title, 169, n. right of jury to determine the law in cases of libel, 394, n. protection of person and property by law of the land, 429, n. liberty of speech and of the press in, 512, n. religious belief not to be test of incompetency of witness, 586, n. CANADA, apportionment of governmental powers in, 6, n. CANALS, appropriation of private property for, 654. 800 INDEX. CANDIDATES FOR OFFICE, criticism of, how far privileged, 529-541, 557. ineligibility of, how to affect election, 780. ' CANVASSERS, act ministerially in counting and returning votes, 782-784. whether they may be compelled by mandamus to perform duty, 784. certificate of, conclusive in collateral proceedings, 785. See Elections. CARRIERS, regulation of charges of, 734-738. police regulations making them liable for beasts killed, 713, 714. change of common-law liability of, by police regulations, 710-716, 734- 738. may be made responsible for death caused by negligence, &c., 715, 716. but not for injuries for which they are not responsible, 713, n. CATTLE, police regulations making railway companies liable for killing, 714. other police regulations, 743. CEMETERIES, further use of, may be prohibited when they become nuisances, 740. CENSORSHIP OF THE PRESS, in England and America, 513-518. CENTRALIZATION, American system the opposite of, 223. CHARACTER, bad, of attorney, sufficient reason to exclude him from practice, 410, 411. slander of, 518. good, of defendant in libel suit, no defence to false publication, 570, n. benefit of, in criminal cases, 398, n. CHARTERS, of liberty, 34. colonial, swept away by Revolution, 38. exceptions of Connecticut and Rhode Island, 38. forfeiture of, is a judicial question, 125. municipal, do not constitute contracts, 229. control of legislature over, 228-231. construction of, 231, 260. See Municipal Corporations. of private corporations are contracts, 334-337. police regulations affecting, 709-716. strict construction of, 486, 487. amendment of, 334-337, 710-712. CHASTITY, accusation of want of, not actionable per se, 520. statutory provisions on the subject, 520. CHECKS AND BALANCES, in constitutions, 46. INDEX. 801 CHILDREN, control of parent, &c., over, 414. obtaining possession of, by habeas corpus, 425. decree for custody of, in divorce suits, 499. CHRISTIANITY, its influence in the overthrow of slavery, 361. in what sense part of the law of the land, 579-583. See Religious Libeety. CHURCH ENDOWMENTS, not to be taken away by legislature, 330, n. CHURCH ESTABLISHMENTS, forbidden by State constitutions, 575. CHURCH ORGANIZATIONS, powers and control of, 571, n. discipline of members, 532, n. CITIES AND VILLAGES. See Municipal Corporations. CITIZENS, who are, 13. of the several States, privileges and immunities of, 14, 24, 481-491, 733. discriminations in taxation of, 490, 597. jurisdiction of United States courts in respect to, 17, 357. CIVIL RIGHTS, protection of, by amendments to constitution, 357, 733. discriminations not to be made in, on account of religious beliefs, 571- 577. ■ See Citizens ; Class Legislation. CLASS LEGISLATION, private legislation which grants privileges, 479. party petitioning for, estopped from disputing validity, 479. public laws may be local in application, 479. ^ special rules for particular occupations, 480. proscription for opinion's sake unconstitutional, 481. suspensions of laws must be general, 482. each individual entitled to be governed by general rules, 483, 484. discriminations should be based upon reason, 484. equality of rights, &c., the aim of the law, 485. strict construction of special burdens and privileges, 485, 486. discriminations not to be made on account of religious beliefs, 571-577. See Civil Rights. CLERICAL ERRORS, in statutes, disregarding, 183, n. COINING MONEY, power over, 12. COLLUSION, conviction by, no bar to new prosecution, 399, n. COLONIES, union of, before Revolution, 7. authority of the Crown and Parliament in, 7, 8. 61 802 INDEX. C OLONIES — continued. Revolutionary Congress and its powers, 8, 9. controversy with the mother country, 34-36. legislatures of, 36. substitution of constitutions for charters of, 38. censorship of the press in, 514-517. COLOR, not to be a disqualification for suffrage, 15, 16, 753. COLORADO, special statutes authorizing sale of lands forbidden, 117, n. divorces not to be granted by the legislature, 129, n. revenue bills to originate in lower house, 157, n. privilege of legislators from arrest, 160, n. title of acts to embrace the object, 170, n. municipalities of, restrained from aiding in public improvements, 268, n. protection of person and property by law of the land, 430, n. liberty of speech and of the press in, 513, n. privilege of legislators in debate, 547, n. religious liberty in, 575, n. private propefrty not to be taken without compensation, 694, n. COLORED PERSONS, protection to rights of, 14-16. rights in schools, 481, n. COMITY, enforcement of contracts by, 150, 151. COMMERCE, power of Congress to regulate, 12, 595, 720-725. State regulations valid when they do not interfere with those of Con- gress, 720-725, 726-732. See Police Power. State taxation of subjects of, 595, 596, 720-725. See Taxation. in intoxicating drinks, how far State regulations may affect, 716-720. COMMITTEES OP THE LEGISLATURE, collection of information by, 161. contempts of witnesses, how punished, 161. employment of counsel before, 163-165, n. COMMON CARRIERS, police regulations regarding, 710-716, 733-739. See Railway Companies. COMMON LAW, Federal courts acquire no jurisdiction from, 30, 526. existing before the Constitution, 32. what it consists in, 32. its general features, 33. modification of, by statutes, 33, 34. colonists in America claimed benefits of, 34. how far in force, 34, n., 35. INDEX. 803 COMMON LAW — continued. of different States, presumption as to similarity of, 35, n. evidences of, 36. decisions under, as precedents, 63-67. gradual modification of, 69. to be kept in view in construing constitutions, 74, statutes in derogation of, 75, n. not to control constitutions, 75. municipal by-laws must harmonize with, 239. rules of liability for injurious publications, 516, 518-525. modification of, by statute, 518, 520. modification by police regulations of common-law liability of carriers, 710-716, 733-739. COMMON RIGHT, statutes against, said to be void, 197-201. COMPACTS BETWEEN STATES, must have consent of Congress, 23. are inviolable under United States Constitution, 330. COMPENSATION, for private property appropriated by the public, 691. See Eminent Domain. for injuries by rioters, 260, 293. what the taxpayer receives as an equivalent for taxes, 608. COMPLAINTS, for purposes of search-warrant, 368. of crime, how made, 374. COMPULSORY TAXATION, by municipal bodies, 279-288. CONCLUSIVENESS OF JUDGMENTS, full faith and credit to be given in each State to those of other States, 25-27. parties and privies estopped by, 60-67, 500-503. but not in controversy with new subject-matter, 62-64. strangers to suit not bound by, 62. irregularities do not defeat, 502, 503. See Jurisdiction. CONDITIONAL LEGISLATION, power of the States to adopt, 137-146. CONDITIONS, what may be imposed on right of suffrage, 445, n., 753, 756. See Elections. precedent to exercise of right of eminent domain, 648-651. CONFEDERACY OF 1643, brought about by tendency of colonies to union, 7. CONFEDERATE DEBT, not to be assumed or paid, 14. 804 INDEX. CONFEDERATION, ARTICLES OF, adoption of, 9. authority to supersede, 9, n. CONFESSIONS, dangerous character of, as evidence, 379, 380. must appear to have been made voluntarily, 380. excluded if solicitations or threats have been used, 380, 381. will not prove the corpus delicti, 381. CONFIDENCE, communications in, when privileged, 523-525. between attorney and client, is client's privilege, 407, 408. CONFIRMING INVALID PROCEEDINGS, of a judicial nature, 126, 127. admissible when defects are mere irregularities, 454. See Retrospective Laws. CONFISCATIONS, require judicial proceedings, 444. during the Revolutionary War, 316. CONFLICT OF LAWS, in divorce cases, 498-497. See Unconstitutional Laws. CONFRONTING WITH WITNESSES, in criminal cases, 387. CONGRESS OF 1690, brought together by tendency of colonies to union, 7. CONGRESS OF THE REVOLUTION, powers assumed and exercised by, 7, 8. CONGRESS OF THE UNITED STATES, general powers of, 11-15. enabling acts by, for formation of State constitutions, 41. cannot divest vested rights, 445. exercise of power of eminent domain by, 645. regulations of commerce by, are supreme, 595, 720-725, 728. See Police Power. CONNECTICUT, charter government of, 38. municipalities of, restrained from aiding public improvements, 268, n. right of jury to determine the law in cases of libel, 394, n. protection of person and property by law of the land, 429, n. liberty of speech and of the press in, 510, n. privilege of legislators in debate, 547, n. religious liberty in, 575, n. CONSCIENCE, FREEDOM OF (see Religious Liberty), 571-586. CONSENT, conviction by collusion no bar to new prosecution, 399, n, cannot confer jurisdiction of subject-matter upon courts, 491, INDEX. 805 CONSENT — continued. cannot authorize jury trial by less than twelve jurors, 390. is a waiver of irregularities in legal proceedings, 503. waiver of constitutional privileges by, 214, 390, n., 479. CONSEQUENTIAL INJURIES, caused by exercise of legal right give no ground of complaint, 473. do not constitute a taking of property, 666-671. otherwise under some constitutions, 689, 690 are covered by assessment of damages when property taken by the State, 703. but not such as result from negligence or improper construction, 703. CONSTITUTION, definition of, 4, 5. object of, in the American system, 49. CONSTITUTION OF ENGLAND, theory of, 6. power of Parliament under, 6. developed by precedents, 65, n. CONSTITUTION OF THE UNITED STATES, origin of, 7-9. ratification of, 9. government of enumerated powers, formed by, 11, 206. general powers of the government under, 11-15. judicial powers under, 17-20, 30. See Courts op the United States. prohibition by, of powers to the States, 23, 356, 752. guaranty of republican government to the States, 28. implied prohibitions on the States, 28. and on municipal corporations, 238. reservation of powers to States and people, 29. difference between, and State constitutions, 11, 205, 206. constraction of, 9, 10, n., 29, 30. amendment of State constitutions, how limited by, 44. new amendments to, 13. protection of person and property by, as against State action, 311-358. bill of rights not at first inserted in, and why, 311. adoption of, afterwards, 312-314. of attainder prohibited by, 314-318. See Bills of Attainder. ex post facto laws also forbidden, 318-328. See Ex Post Facto Laws. laws impairing obligation of contracts forbidden, 328-356. what is a contract, 328-337. what charters of incorporation are, 334-337. whether release of taxation is contract, 337, 338, 442, 443. whether States can relinquish right of eminent domain, 339, 340, 644. or the police power, 340, 341, 718, n. general laws of the States not contracts, 343. 806 INDEX. CONSTITUTION OF THE UNITED STATES— continued. ■what the obligation of the contract consists in, 344. power of the States to control remedies, 347-356. to pass insolvent laws, 356, 357. See Obligation of Contracts. regulations by the State, wneu in conflict with, 707-720, 733. See Police Powek. regulation of the subjects of commerce by the States, 595, 596, 717, 720- 725, 726-732, 734-739. CONSTITUTIONS OF THE STATES, compared with that Of the United States, 11, 205, 206. formation and amendment of, 32-50. conditions on, imposed by Congress, 42. construction of, 51-101. not the source of individual rights, 49. See State Constitutions ; Construction of State Constitutions. CONSTITUTIONAL CONVENTIONS, for formation and amendment of State constitutions, 41-45. proceedings of, as bearing on construction of constitution, 80. of 1787 sat with closed doors, 515. CONSTITUTIONAL GOVERNMENTS, meaning of the term, 4. CONSTITUTIONAL PRIVILEGES, may be waived generally, 214. See Waiver. CONSTRUCTION, meaning of and necessity for, 51. of United States Constitution and laws by United States courts, 17, 18. of State constitution and laws by State courts, 20-23, 357. of special privileges, 485. CONSTRUCTION OF STATE CONSTITUTIONS, meaning of the term " construction," 51. necessity for, 51. questions of, arise whenever powers to be exercised, 52. who first to decide upon, 53-55. in certain States judges may be called upon for opinions in advance, 53, n. in what cases construction by legislature or executive to be final, 54, 57. in what cases not, 55-58. when questions of, are addressed to two or more departments, 56. final decision upon, rests generally with judiciary, 57-59, 67, 68. reasons for this, 58. this does not imply pre-eminence of authority in the judiciary, 58, 59, n. the doctrine of res adjudicata, 60-68. decisions once made binding upon parties and privies, 60, 61. force of judgment does not depend on reasons given, 62. strangers to suit not bound by, 63. nor the parties in a controversy about a new subject-matter, 63. INDEX. 807 CONSTRUCTION OF STATE CONSTITUTIONS — conimued. the doctrine of stare decisis, 60-68. only applicable within jurisdiction of court making the decision, 65. importance of precedents, 65, n. when precedents to be disregarded, 66. when other departments to follow decisions of the courts, and when not, 67, 68. uniformity of construction, importance of, 68. not to be affected by changes in public sentiment, 69. words of the instrument to control, 69-71, 80, 101, n., 155. intent of people in adopting it to govern, 69-71. intent to be found in words employed, 70 and n., 71. whole instrument to be examined, 71-73 and n. words not to be supposed employed without occasion, 72. effect to be given to whole instrument, 72. irreconcilable provisions, 72, n. general intent as opposed to particular intent, 73, n. words to be understood in their ordinary sense, 73, 101, n. words of art to be vmderstood in technical sense, 74. importance of the histoi-y of the law to, 74, 80. common law to be kept in view, 74-77. but not to control constitution, 75. whether provisions in derogation of, should be strictly construed, 75, n. arbitrary rules of, dangerous, 74-77, 101. and especially inapplicable to constitutions, 72. same word presumed employed in same sense throughout, 76. this not a conclusive rule, 76. operation to be prospective, 77. implied powers to carry into effect express powers, 78, 79. power granted in general terms is coextensive with the terms, 78. when constitution prescribes conditions to a right, legislature cannot add others, 79. mischief to be remedied, consideration of, 79. prior state of the law to be examined, 80. proceedings of constitutional convention may be consulted, 80. reasons why unsatisfactory, 80, 81. weight of contemporary and practical construction, 81. the argument ab inconvenienti, 82-86. deference to construction by executive officers, 83, 84. plain intent not to be defeated by, 83-85. injustice of provisions will not render them void, 87, 88. nor authorize courts to construe them away, 87. doubtful cases of, duty of officers acting in, 88. directory and mandatory statutes, doctrine of, 88-98. not applicable to constitutions, 94-98. has been sometimes applied, 95-97. authorities generally the other way, 97, 98. self-executing provisions, 98-101. 808 INDEX. CONSTRUCTION OF STATUTES, by judiciary, conclusiveness of, 112. to be such as to give them effect, if possible, 218. conflict with constitution not to be presumed, 218, 219. directory and mandatory, 88-98. contemporary and practical, weight to be given to, 81-86. to be prospective, 219, 455. granting special privileges, 231-233, 487. CONSTRUCTIVE NOTICE, 497. CONTEMPORANEOUS CONSTRUCTION, force and effect of, 81-86. CONTEMPTS, of the legislature, punishment of, 159-161. of legislative committees, 161. no jury trial in cases of, 389, n. CONTESTED ELECTIONS, right of the courts to determine upon, 785. See Elections. CONTESTED FACTS, cannot be settled by statute, 115, 123-126. CONTESTED SEATS, legislative bodies to decide upon, 158. CONTINENTAL CONGRESS, powers assumed and exercised by, 7, 8. CONTINGENT LEGISLATION, authority of the States to adopt, 137, 138, 142, n., 145, 146. CONTINUANCES, of suits, not to be ordered by legislature, 114, n. CONTRACTS, for lobby feerviees, illegal, 163, n. to influence elections, are void, 773, n. cannot be made for individuals by legislative act, 453. charters of municipal corporations do not constitute, 228-231. of private corporations are, 334, 335. of municipal corporations idlra vires void, 231-233. invalid, may be validated by legislature, 454-471. obligation of, not to be violated, 148, 328. See Obligation op Contracts. COPYRIGHT, Congress may secure to authors, 12. CORPORATE CHARTERS. See Charters. CORPORATE FRANCHISES, may be appropriated under right of eminent domain, 646, 647. CORPORATE POWERS, adjudging forfeiture of, 125, n. CORPORATE PROPERTY, legislative control of, 288. INDEX. 809 CORPORATIONS, orgauizatiou of, not a judicial function, 119, n. foreign, powers of, 151. educational, 223-225, n. private, may be authorized to take lands for public use, 661, 662. irregular organization of, may be validated, 460, n. See Charters ; Municipal Corporations. CORPUS DELICTI, not to be proved by confessions, 381. CORRESPONDENCE, private, inviolability of, 370. COUNSEL, constitutional right to, 322, 403-411. oath of, 404, n. duty of, 403-411. denial of, in England, 405, 406. court to assign, for poor persons, 406. ■whether those assigned may refuse to act, 406. privilege of, is the privilege of the client, 407. independence of, 409, 411. not at liberty to withdraw from cause, except by consent, 408. how far he may go in pressing for acquittal, 409. duty of, as between the court and the prisoner, 409. ■whether. to address the jury on the law, 410. summary punishment of, for misconduct, 410, 437, n , 498, n. limitation of client's control over, 411. See Attorneys. may be employed before legislative committees, 163, n. but not as lobbyists, 163, n. not liable to action for what he may say in judicial proceedings, 544-546. unless irrelevant to the case, 546. not privileged in afterwards publishing his argument, if it contains in- jurious reflections, 549. newspaper publisher not justified in publishing speech of a criminal re-, fleeting on, 557. COUNTERFEITING, Congress may provide for punishment of, 12. States also may punish, 29. COUNTIES AND TOWNS, difference from chartered incorporations, 294. See Municipal Corporations. COUMTY SEAT, change of, 473. COURTS, duty of, to refuse to execute unconstitutional laws, 86, n. , 97, 98, 192 et seq. contested elections to be determined by, 785. not to be directed by legislature in decisions, 110-115. 810 INDEX. COURTS — continued. action of, not to be set aside by legislature, 113. may not control the executive, 136. must act by majorities, 115, n. not to be open on election days, 772. power to declare laws unconstitutional a delicate one, 192. will not be exercised by bare quorum, 195. nor unless necessary, 196. nor on complaint of one not interested, 196. nor of one who has assented, 196. will not declare laws void because solely of unjust provisions, 197-202. nor because in violation of fundamental principles, 202-204. nor because conflicting with the spirit of the copstitution, 204-206. nor unless a clear repugnancy between the laws and the constitution, 206-209. special, for trial of rights of particular individuals, 484, of star chamber, 416. of high commission, 417. martial, 390, n. of the United States, to be created by Congress, 12. general powers of, 17. removal of causes to, from State courts, 18-20. to follow State courts as to State law, 20-23. to decide finally upon United States laws, &c., 18. require statutes to apportion jurisdiction, 29, 30. have no common-law jurisdiction, 30. in what cases may issue writs of habeas corpus, 420-422. See Jurisdiction. CREDIT, bills of, 23. CREDITOR, control of debtor by, 416. CRIMES, committed abroad, punishment of, 149. legislative convictions of, prohibited, 24, 44, 316, 317. ex post facto laws prohibited, 24, 44, 318. punishment of, by servitude, 363. search-warrants for evidence of. See Searches and Seizures. accusations of, how made, 374. presumption of innocence, 375-377. right of accused party to bail, 375-377. prisoner refusing to plead, 377, n. trial to be speedy, 377. and public, 379. and not inquisitorial, 379. prisoner's right to make statement, 380-386. confessions as evidence, 380-388. prisoner to be confronted with the witnesses, 387, 388. INDEX. 811 CRIMES — continued. exceptional cases, 387. to be by jury, 374, 389. jury must consist of twelve, 390. right to jury cannot be waived, 390. prisoner's right to challenges, 391. jury must be from vicinage, 391. must unanimously concur in verdict, 392. must be left free to act, 392. judge not to express opinion upon the facts, 392. nor to refuse to receive the verdict, 393. but is to give instruction in the law, 393, 394 how far jury m^y judge of the law, 394-397. acquittal by jury is final, 395. accused not to be twice put in jeopardy, 398. what is legal jeopardy, 399. when nolle prosequi equivalent to acquittal, 399. when jury may be discharged without verdict, 400. second trial after verdict set aside, 401. cruel and unusual punishments prohibited, 401-403. t counsel to be allowed, 322, 403-411. oath of, 404. duty of, 404-411. denial of, in England, 405. court to designate, for poor persons, 406. whether one may refuse to act, 406. privilege of, is the privilege of the client, 407. not at liberty to withdraw from case, except by consent, 409. how far he may go in pressing for acquittal, 409. duty of, as between the court and the prisoner, 409. whether to address the jury on the law, 410. summary punishment of, for misconduct, 410, 437, n., 498, n. not to be made the instrument of injustice, 411. intoxication no excuse for, 584, n. habeas corpus for imprisoned parties, 412-426. accusations of, are libellous perse, 519, 520. but privileged if made in course of judicial proceedings, 542-544. violations of police regulations of States, 745. CRITICISM, of works of art and literary productions is privileged, 557. but not of the personal character of the author, 557. See Liberty of Speech and of the Press. CROWN OF GREAT BRITAIN, succession to, may be changed by Parliament, 103. union of the colonies under, 7. CRUEL AND UNUSUAL PUNISHMENTS, constitutional prohibition of, 401. what are, 402, 403. 812 INDEX. CUMULATIVE PUNISHMENTS, for counterfeiting money, 29. under State and municipal laws, 239. CURATIVE LAWS, 454-471. CURTESY, ESTATE BY THE, power of legislature to modify or abolish, 440. CUSTODY, of wards, apprentices, servants, and scholars, 414, 415. of wife by husband, 413. of children by parents, 414. of principal by his bail, 415. CUSTOMS. See Common Law; Duties and Imposts, D. DAM, to obtain water power, condemnation of land for, 657-661. effect of repeal of act permitting, 473, n. erection of, across navigable waters by State authority, 732. destruction of, when it becomes a nuisance, 740. DAMAGES, in libel cases, increased by attempt at justification, 537. when exemplary, not to be awarded, 560. for property taken by the public, must be paid, 691. See Eminent Domain. DAMAGING, property in course of public improvements, 689, 690. DAMNUM ABSQUE INJURIA, ■what consequential injuries are, 473, 668, 689. DEATH, common carriers may be made liable for causing, 715. DEBATES, in Parliament formerly not suffered to be published, 513. in American legislative bodies, publication of, 514, 515, 562-564. privileges of members in, 546-549. See Liberty op Speech and of the Press. DEBT, public, declared inviolable, 14. * Confederate, not to be assumed or paid, 14. imprisonment for, may be abolished as to pre-existing obligations, 348. imprisonment for, now generally abolished, 416. DEBTOR, control of creditor over, 416. DEBTS BY THE STATE, prohibition of, vphether it precludes indebtedness by municipalities, 270- 273. DECENTRALIZATION, the peculiar feature in American government, 223. INDEX. 813 DECISIONS, judicial, binding force of, 60-68. See Judicial Proceedings. DECLARATION OF RIGHTS, •was a declaratory statute, 34, 311, 312. See Bill of Rights. DECLARATORY STATUTES, in English constitutional law, 32-36. are not encroachments upon judicial power, 110-113. judgments not to be reversed by means of, 111-113. purpose and proper force of, 110-113. DEDICATION, of lands to public use, 697. DEEDS, invalid, may be confirmed by le^slature, 454-467. but not to prejudice of bona fide purchasers, 465, 470, n. DEFENCES, not based upon equity, may be taken away by legislature, 454-467, 478. under statute of limitations are vested rights, 448. DEFINITIONS, of a State, 3. of a nation, 3. of a people, sovereignty, and sovereign State, 3. of a constitution, 4. of an unconstitutional law, 5. of construction and interpretation, 51, 52. of self -executing provisions, 99. of legislative power, 108. of judicial power, 109. of declaratory statutes, 110. of due process of law, 431. of law of the land, 431. of personal liberty, 412. of civil liberty, 485, n. of natural liberty, 484, n. of liberty of the press, 516. of liberty of speech, 516, 518. of religious liberty, 571-577. of ta:sation, 587. of the eminent domain, 643. of police power, 704. of domicile, 754. of incompatibility in offices, 748, n., 749, u. of officer de jure, 750. of officer de facto, 750. of ballot, 760. 814 INDEX. DELAWARE, revenue bills must originate in lower house, 157, n. right of jury to determine the law in cases of libel, 394, n. protection of person and property by law of the land, 429, n. liberty of speech and of the press in,^511, n. privilege of legislators in debate, 547, n. exclusion of religious teachers from office, 574, n. religious tests forbidden, 575, n. DELEGATION OF POWER, of judicial power, not admissible, 115, 504. by the legislature npt admissible, 137-146. except as to powers of local government, 139, 140. such delegated power may be recalled, 140. by municipa,l corporations invalid, 248. by officers in inflicting punishment, 403, n. DEPARTMENTS OF THE GOVERNMENT, division of powers between, 45-50, 104-110. equality of, 54, n, 56, n, 59, n. DESCENT, LAW OF, 438^40. DESECRATION OF THE SABBATH, constitutional right to punish, 584, 725, 743, n. DESTRUCTION OF PROPERTY, to prevent calamities, 260, n., 646, n., 739, 740. DIRECTORY STATUTES, what are, and what are mandatory, 88-98. doctrine of, not admissible as to constitutional provisions, 93-98. DISABILITIES, personal, do not follow into another jurisdiction, 28, n. DISCRETIONARY POWERS, what are, 53. department to which they are confided decides finally upon, 53, 133-136. DISCRIMINATIONS, cannot be made in taxation between citizens of different States, 489, 597. ' in legislation between different classes, 479-491. in the privileges and immunities of citizens, 13, 24, 481-491, 733. not to be made on account of religious belief, 575-586. DISCUSSION, right of, 426, 427. See Liberty of Spekch and of the Press. DISFRANCHISEMENT, of voters, may render a statute void, 775. what classes excluded from suffrage, 40, 41, 88, 752, 753. DISTRICTS, for schools, powers of, 223-225, n., 295. exercise by, of power jf eminent domain, 661. for taxation, necessity for, 610-613. not to tax property outside, 615. taxation to be uniform within, 617. INDEX. 815 DIVISION OF POWERS, between sovereign States, 3, 4. between the States and the Union, 4. among departments of State government, 45-48, 104-110. DIVISION OF TOWNSHIPS, &c., question of, may be submitted to people, 139, 140. disposition of property and debts on, 230, n. DIVORCE, question of, is properly judicial, 114, n., 129. power of the legislature over, 129, 132, 133. general doctrine of the courts on the subject, 130. conflicting decisions, 130-132. legislative divorce cannot go beyond dissolution of the status, 133. constitutional provisions requiring judicial action, 129, n. laws for, do not violate contracts, 344. and may be applied to pre-existing causes, 321, n. what gives jurisdiction in cases of, 494. actual residence of one party in the State sufficient, 494. conflict of decisions on this subject, 494-496. not sufficient if residence merely colorable, 495, n. necessity for service of process, 497. cannot be served out of State, 498, 499. substituted service by publication, 497. restricted effect of such notice, 498. order as to custody of children, 499. alimony not to be awarded if defendant not served, 499, DOGS, police regulation of, 740. DOMAIN, ordinary, of the State, distinguished from eminent domain, 643. DOMICILE, gives jurisdictiqn in divorce cases, 494. . but must be bona fide, 493, n. of wife may be different from thatt)f husband, 495, n. of one party, may give jurisdiction in divorce cases, 494. of voters, meaning of, 754. DOUBLE PUNISHMENT, for same act under State and municipal law, 289. for counterfeiting money, 29. DOUBLE TAXATION, sometimes unavoidable, 631. DOUBTFUL QUESTIONS, of constitutional law, duty in case of, 88, 216-220. DOWER, legislative control of estates in, 440, 442. 816 INDEX. DRAINS, appropriating property for purposes of, 046, n., 654. special assessments for, 612, 627, 628. ordered under police power, 741. DRUNKENNESS, does not excuse crime, 584, n. is a temporary insanity, 753, n. DUE PROCESS OF LAW, meaning of the term, 431 ei seq. See Law of the Lakd. DUPLICATE PUNISHMENTS, by States and United States, 29. by States and municipal corporations, 239. DUTIES AND IMPOSTS, to be uniform throughout the United States, IL what the States may lay, 23. DWELLING-HOUSE, is the owner's castle, 83, 364. homicide in defence of, 372, 373. quartering soldiers in, prohibited, 373. DYING DECLARATIONS, admissible in evidence on trials for homicide, 388. inconclusive character of the evidence, 388. E. EASEMENTS, acquirement by the public under right of eminent domain, 643. private, cannot be acquired under this right, 651, 652. See Eminent Domain. ECCLESIASTICAL CORPORATIONS, powers and control of, 571-574, n. ELECTIONS, provisions in Federal Constitution respecting, 14, 15. on adoption of State constitutions, 40, 41. people exercise the sovereignty by means of, 748. who to participate in, 752. constitutional qualifications cannot be added to by legislature, 79, n. exclusion of married women, aliens; minors, idiots, &c., 752, 753. conditions necessary to participation, 753, 754, 756-760. presence of voter at place of domicile, 754, 755. what constitutes residence, 755. registration may be made a condition, 758. preliminary action by the authorities, notice, &c., 759, mode of exercising the right, 760. the elector's privilege of secrecy, 760-763. a printed ballot is " written," 761, n. INDEX. 817 ELECTIONS — continued. ballot must be complete in itself, 764. technical accuracy not essential, 765-770. explanations by voter luadmisaibLB, 761. mast not contain too many names, 764. name should be given in full, 765. sufficient if idem sonans, 766. what abbreviations sufficient, 766-768. erroneous additions not to affect, 767, n. ■extrinsic evidence to explain imperfections, 768. ballot must contain name of office, 769. but need not be strictly accurate, 769. different boxes for different ballots, 770. elector need not vote for every office, 771. plurality of votes cast to elect, 771, 779. effect if highest candidate is ineligible, 780. freedom of elections, 771. bribery or treating of voters, 772. militia not to be called out on election day, 774. courts not to be open on election day, 772. bets upon election are illegal, 772. contracts to influence election are void, 772, 773. elector not to be deprived of his vote, 775. statutes -which would disfranchise voters, 775. failure to hold election in one precinct, 775. liability of inspectors for refusing to receive vote, 776. elector's oath, when conclusive on inspector, 776. conduct of the election, 776. effect of irregfularities upon, 776-779. what constitutes a sufficient election, 779. not necessary that a majority participate, 779. minority representation, 779, n. admission of illegal votes not to defeat, 780. unless done fraudulently, 781. effect of casual affray, 7^1. canvass and return, 782. • canvassers are ministerial officers, 783. canvassers not to question returns made to them, 788. whether they can be compelled by mandamus to perform duty, 784. contesting eledtions in the courts, 785. canvasser's certificate as evidence, 785, 787. ' courts may go behind certificate, 785, 787, 788. what surrounding circnmstances may be given in evidence, 789-791. whether qualification of voters may be inquired into, 790. to legislative body, house to decide upon, 158. EMANCIPATION, of slaves in Great Britain and America, 13, 359-364. of children by parents, 414. 52 818 INDEX, EMERGENCY, declaration of, 188. EMINENT DOMAIN, distinguished from ordinary domain of States, 642, 643. definition of, 643. right of, rests upon necessity, 643. cannot be bargained away, 339, 644. ' general right is in the States, 645 for what purposes nation may exercise right, 645. all property subject to right, 646. exception of money and rights in action, 647, 648. legislative authority requisite to, 648. legislature may determine upon the necessity, 648. conditions precedent must be complied with, 649. statutes for exercise of, not to be extended by intendment, 649-051. the purpose must be public, 651. legislative judgment not conclusive as to what is public use, 660, 661. private roads cannot be laid out under, 652. what constitutes public purpose, 654-661. whether erection of mill-dams is, 657. property need not be taken to the State, 661. individuals or corporations may be public agents for the purpose, 662. the taking to be limited- to the necessity, 664. statute for taking more than is needed is ineffectual, unless owner assents, 665. what constitutes a taking of property, 666. incidental injuries do not, 666, 667. any deprivation of use of property does, 670. water front and right to wharfage is property, 670, 671. right to pasturage in streets is property, 671. taking of common highway for higher grade of way, 671. if taken for turnpike, &c., owner not entitled to compensation, 672. difference when taken for a railway, 673-684. owner entitled to compensation in such case, 673-684. whether he is entitled in case of street railway, 673-684. decisions where the fee of the streets is in the public, 678, 679. distinction between a street railway and a thoroughfare, 683. right to compensation when course of a stream is diverted, 686. whether the fee in the land can be taken, 687-689. damage to property not taken to be compensated for in some States, 689, 690. compensation must be made for property, 691. must be pecuniary, 691. preliminary surveys may be made without, 693. need not be first made when property taken by State, &c., 692. sufficient if party is given a remedy by means of which he may obtain it, 692, time for resorting to remedy may be limited, 693. waiver of right to compensation, 693. when property taken by individual or private corporation, compensa- INDEX. 819 EMINENT DOMAIN — continued. tion must be first made, 693. tribunal for assessment of, 694, 695. time when right to payment is complete, 696. principle on which compensation to be assessed, 696, 697. allowance of incidental injuries and benefits, 697-699. not those suffered or received in common with public at large, 701, 702. if benefits equal damages, owner entitled to nothing, 702. assessment of damages covers all consequential injuries, 703. for injuries arising from negligence, &c., party may have action, 703. EMPLOYMENTS, control of the State in respect to, 742-745. ■ ENABLING ACT, to entitle Territory to form State constitution, 38, 41. ENGLAND. See Great Britain. ENROLLED ACT, effect of, as evidence of its own validity, 162. ENUMERATED POWERS, United States, a government of, 11. EQUALITY, of protection guaranteed by the fourteenth amendment, 14. of the several departments of the government, 59, n. of rights and privileges, the aim of the law, 485. grants of special privileges construed strictly, 485, 486. religious, 572. See Religious Liberty. EQUITABLE TITLES, may be changed by legislature into legal, 463-465. ERRONEOUS JUDGMENTS, may be overruled, 66. when they should not be, 66. ERRORS, waiver of, in legal proceedings, 503. judgments, &c., not void by reason of, 503. curing by retrospective legislation, 454-471. in conduct of elections, effect of, 776-779. ESSENTIAL POWERS OF GOVERNMENT, taxation, eminent domain, &c., cannot be bartered away, 337-342. ESTABLISHMENTS, religious, are forbidden by State constitutions, 575. ESTATES OF DECEASED PERSONS, special legislative authority to sell lands for payment of debts is consti- tutional, 115-127. such acts forbidden by some constitutions, 116, n. legislature cannot adjudicate upon debts, 123-126. ESTATES IN LAND, subject to change by the legislature before they become vested, 438. but not afterwards, 112, n. 820 INDEX. ESTOPPEL, by judgment only applies to parties and privies, 60, 62. does not depend on reasons given by the court, 62. does not apply in controversy about new subject-matter, 63. of the State by its legislation, 87, n., 310. of individuals by legislation, 115. EVASION, of constitutional provisions, 166-, n. EVIDENCE, by recitals in Statutes, 115. collecting by legislature, 161. complete control of legislature over rules of, 349, 450. conclusive rules of, not generally admissible, 452, 453. confessions of accused parties as, 380-386. dying declarations, when are, 388. search-warrants to obtain, not constitutional, 370, 37'1, n. correspondence not to be violated to obtain, 371, n. accused party not compelled to give, against himself, 379. by accused parties in their own favor, 384-386. against accused parties, to be given publicly, and in their presence, 387. communicatioas by client to counsel not to be disclosed, 407. in State courts, State laws control, 592, 593, n. to explain imperfections in ballots, 765-769, 789. EVIL TO BE REMEDIED, weight of, in construing constitutions, 79, 101, n. what in view in requiring title of act to state the object, 170. EXAMINATIONS, of accused parties, when to be evidence against them, 379, 380. EXCESSIVE PUNISHMENTS, constitutional prohibition of, 401. EXCESSIVE TAXATION, renders tax proceedings and sales void, 638, 639. EXCISE TAXES, Congress may lay, 11. EXCLUSIVE PRIVILEGES, grant of, 342. not to be taken by implication, 487. strict construction of, 337-342. are subject to right of eminent domain, 339. EXECUTION, exemptions from, may be increased without violating pre-existing con tracts, 347, 348. and may be recalled, 471. imprisonment upon, may be abolished, 350. EXECUTIVE, construction of constitution by, 53-56. weight of practical construction by, 81. INDEX. 821 EXECUTIVE — continued. power of, to pardon and reprieve, 136. approval or veto of laws by, 184-186. EXECUTIVE POWER, what is, 108. not to be exercised by legislature, 104, 133-137. exercise of, not to be controlled by the judiciary, 136. of the United States, 16, 17. EXECUTORS AND ADMINISTRATORS, special statute, authorizing sales by, 115-122. propriety of judicial action in these cases, 116. legislature cannot adjudicate upon debts, 123. EXEMPLARY DAMAGES, against publisher of newspaper, 560-562. EXEMPTIONS, provisions for, when self-executing, 100. ■waiver of right to, 215. from taxation, when not repealable, 146, 337, 338, 472. power of the legislature to make, 632. from public duties, &c., may be recalled, 277, 471. of property from right of eminent domain, 340. of property from police power of the State, 340, 341. from executicm may be increased without violating contracts, 347, 348. of debtor from imprisonment, 348, 416. privilege of, may be made to depend upon residence,, 490. laws for, not to be suspended for individual cases, 482, 483. EX PARTE PROCEEDINGS, how far binding on parties interested, 503. publication of, not privileged, 549, 550. EXPECTANCY, interests in, are not vested rights, 438. EXPEDIENCY, questions of, are legislative, 202-205. EXPOSITORY ACTS. See Declaratoky Statutes. EX POST FACTO LAWS, States not to pass, 24, 318. meaning of the term, 319. only applies to criminal laws, 319. classification of, 319. laws in mitigation of punishment are not, 320. what is in mitigation, and what not, 321-328. modes of procedure in criminal cases may be changed, 326. punishment of second offences, 327. EXPRESSION OP POPULAR WILL, must be under forms of law, 747. See Elections. EXPULSION, of legislative members for misconduct, 158. 822 INDEX. EXTRADITION, of criminals as between the States, 24, 25, 26, n. of persons accused of libel, 392, n. between sovereignties, 26, n. treaties for, may be retroactive, 328, n. F. FACT AND LAW, province of judge and jury respectively, 392-397. in libel cases, 564. FAST DAYS, appointment of, does not violate religious liberty, 578. FEDERAL COURTS. See Courts of the United States. FEDERALIST, on the power to supersede the Articles of Confederation, 9, 10, n. reasons of, for dispensing with national bill of rights, 311. reference in, to laws violating obligation of contracts, 328. FEE, whether the public may appropriate, in taking lands, 687. FEMALES, accusation of want of chastity riot actionable per se, 520. statutes on the subject, 520. excluded from suffrage, 753. See Married Women. FERRY FRANCHISES, granted to municipal corporations, maybe resumed, 332, 333. strict construction of, 486-488. grants of, by the State across navigable waters, 731. police regulations respecting, 732. FEUDAL KINGDOM, definition of, 33, n. FIFTEENTH AMENDMENT, provisions of, 14, 15, 753. FINE, remission of, 135, n. FIRE, destruction of buildings to prevent spread of, 646, 739. precautions agaiiist, by establishing fire limits, 245, 739. FISHERY, , public rights of, in navigable waters, 642. restrictions upon, 247. FLORIDA, judges of, to give opinions to the governor, 53, n. divorces not to be granted by legislature, 129, n. exercise of the pardoning power restrained, 135, n. INDEX. 823 FLORIDA — continued. protection to person and property by law of the land, 430, n. liberty of speech and of the press in, 512, n, privilege of legislators in debate, 547. religious liberty in, 575, n. religious belief not to be a test of competency of witness, 586, n. private property not to be taken without compensation, 694, n. FOREIGN CONTRACTS, enfoi'cement of, 150. FOREIGN CORPORATIONS, powers of, 150. FOREIGNERS. See Aliens. FORFEITURES, under municipal by-laws, 248, n. must be judicially declared, 125, 316-318, 445, 446. FORMS, prescribed by constitution are essential, 93-98, 209. FOURTEENTH AMENDMENT, protections of, 13-16, 357, 489, 733. FOURTH OF JULY, celebration of, at public expense, 261. FOX'S LIBEL ACT, provisions of, 566. FRANCHISES, of incorporation, when they constitute contracts, 334, 335. granted to municipal bodies may be resumed, 228, 333. repeal of, where right to repeal is reserved, 472, 711. Strict construction of, 231, 232, 486,487. police regulations respecting, 709-716. may be appropiiated under right of eminent domain, 646. FRAUD, as affecting decrees of divorce, 494. FREEDMEN, made citizens, 13, 357, 733. FREEDOM, maxims of, in the common law, ,32, 33. gradually acquired by servile classes in Great Britain, 359-364. See Personal Liberty. FREEDOM OF ELECTIONS, provisions to secure, 771, bribery and treating of electors, 772. militia not to be called out on election day, 774. courts not to be open on election day, 772. betting on elections illegal, 772. contracts to influence elections void, 772, 773, FREEDOM OF THE PRESS, Hamilton's reasons why protection of, by bill of rights, not important, 312. 824 INDEX, FREEDOM OF THE FRESS — continued. opposing reasons by Jefferson, 313, n. See Liberty of Speech and op the Press. FKEEDOM OF SPEECH, definition of, 516, 518. See Liberty of Speech and of the Press. FUGITIVj;S FROM JUSTICE, v to be delivered up by the States, 24-27 and notes, surrender of, under treaties, 26, n. FUNDAMENTAL LAW, constitutions are, 4. FUNDAMENTAL RIGHTS, bills of, in State constitutions, 47. in the national Constitution, 311-313. in England, 32, 312. are before constitutions, 49. statutes in violation of, 196-206. under fourteenth amendment, 13, 14, 357, 489, 733. G. GAMING IMPLEMENTS, keeping of, for unlawful games may be prohibited, 742. GENERAL INTENT, ■when to control particular intent, 72, u. GENERAL LAWS, exceptions from, in some cases, 115-126. required instead of special, by some constitutions, 152-154. in cases of divorce, 129, n. control municipal regulations, 239. due process of law does not always require, 116, 433-436, 479-481. submission of, to vote of people invalid, 137-144. suspension of, 482. changes in, give citizens no claim to remuneration, 343, 437. respecting remedies, power to change, 322-327, 347-358, 442-453. GENERAL WARRANTS, • illegality of, 359-368. GEORGIA, divorce cases to be adjudged by the courts, 129, n. revenue bills to originate in lower house, 157, n. right of jury to determine the law in cases of hbel. 394, n. protection to person and property by law of the land, 430, n. liberty of speech and of the press in, 512, n. privilege of legislators in debate, 547, n. religious tests for office forbidden in, 575, n. private property not to be taken without compensation, 694, n. INDEX. 825 GOOD MOTIVES AND JUSTIFIABLE ENDS, defence of, in libel cases, 568. burden of proof on defendant to show, 569. GOVERNMENT, constitutional, what is, 4, 5. republican, to be guaranteed to the States, 28. of the United States, origin of, 7-9. not liable for acts of agents, 18, u. GOVERNOR, mandamits to, 136, n. approval or veto of laws by, 184. messages to legislature, 187. power to prorogue or adjourn legislature, 157. power to convene legislature, 187. legislative encroachment on powers of, 133-136. power to pardon, 134, 135. to appoint officers and remove them, 133, 134. to reprieve, 135. GRADE OF RAILROADS, legislature may establish, for crossings, 714. GRADE OF STREETS, change of, gives parties no right to compensation, 251. special assessments for grading, 612, 622-626. GRAND JURY, criminal accusations by, 374. presentments by, are privileged, 542, GRANTS, are contracts, and inviolable, 329. by States, cannot be resumed, 329-331. of franchises, strict construction of, 281-233, 486-488. when they constitute contracts, 331-342. to municipal bodies, may be recalled, 333. GREAT BRITAIN, how it became a constitutional government, 4, n., 65, n. power of Parliament to change constitution, 6. meaning of unconstitutional law in, 5. control over American colonies, 7, 34-37. statutes of, how far in force in America, 3d. bill of rights of, 34, 312. habeas corpus act of, 34, 418. local self-government in, 225. declaration of rights of, 314. bills of attainder in, 314-316. money bills to originate in the Commons, 156. emancipation of slaves in, 359-364. prosecutions for libel in, 525, 526, 563, n., 564. See Parliament. 826 INDEX. GUARANTIES. See Fundamental Eights; Jury Trial; Law of the Land; Liberty. GUARDIANS, special statute authorizing sales by, 115, 116. propriety of judicial action in such cases, 115, 116. control of ward by, 414. appointment of, in divorce suits, 499. authority of, is local, 414. GUNPOWDER, police regulations concerning, 740. H. HABEAS CORPUS,- writ of, a principal protection to personal liberty, 412, 418. personal liberty,, meaning of, 412. restraints upon, to prevent or punish crime, &c., 413. growing out of relation of husband and wife, 413. of parent and child, 414. of guardian and ward, 414. of master and apprentice, 415. of master and servant, 415. of teacher and scholar, 415. of principal and bail, 415. of creditor and debtor, 416. insecurity of, formerly, in England, 416. habeas corpus act, and its puipose, 34, 418. general provisions of, 419. adoption of, in America, 420. writ of, when to be issued by national courts, 420-422. generally to issue from State courts, 423. return to, where prisoner held under national authority, 421, n. cases for, determined by common law, 423. not to be made a writ of error, 423. what to be inquired into under, 424, 425. right to jury trial in liaheas corpus cases, 426. to obtain custody of children, 425. HACKMEN, regulation of charges of, 734-738. HARBOR REGULATIONS, establishment of, by the States, 721-725. wharf lines may be prescribed, 739. HARDSHIP, of particular cases not to control the law, 87, n. unjust provisions not necessarily unconstitutional, 87, 88, 630, 631. HEALTH, police regulations for protection of, 720, 721, n., 740. draining swamps, &c., in reference to, 627, 628, 741. INDEX. 827 HEARING, right to, in judicial proceedings, 449, 495-503. in cases of appropriation of lands, 695. in tax proceedings, 610, n. HEIRSHIP, right to modify, 438. HIGH SEAS, not subject to exclusive appropriation, 4. States no authority upon, 149. HIGHWAYS, establishment of, under right of eminent domain, 643. compensation in such case, 691. appropriation of, to purposes of turnpike, railroad, &o., whether it en- titles owner to compensation, 671-687. See Eminent Domain. regulations of, by States under police power, 725, 732. HOMESTEADS, provisions for, when self-executing, 100. exemption of, from 'execution, 348. HUSBAND AND WIFE, power of legislature to divorce, 128. jurisdiction in divorce cases, 493-500. See Divorce. control of husband over wife, 413, 414. obligation of husband to support wife, 413, n. right, as between, to custody of children, 425. property rights, how far subject to legislative control, 443, 444. validating invalid marriage by legislation, 459. IDEM SONANS, ballots sufficient in cases of, 766. IDIOTS, exclusion of, from suffrage, 753. special legislative authority for sale of lands of, 115-123, 479. ILLEGAL CONTRACTS, have no obligation, 345. legalization of, 355-356, 461-465. for lobby legislative services, 163, 164-166, n. designed to affect elections, 772, 773. ILLINOIS, special statutes licensing sale of lands forbidden, 116, n. divorces not to be granted by the legislature, 129, n. title of acts to embrace the subject, 170, n. special legislative sessions, 185, n. time when acts take effect, 188. 828 INDEX. ILLINOIS — continued. provision in relation to special laws, 221, n. municipalities restrained from aiding public improvements, 268, n. restriction upon power to contract debts, 273. protection to person and property by law of the land, 430, n. liberty of speech and of the press in, 512, n. privilege of legislators in debate, 547, n. religious liberty in, 575, n. damaging property in the course of public improvements, 689. taking land for railroad tracks, 688, n. private property not to be taken without compensation, 694, n. IMMUNITIES, of citizens of the sevei-al States, 24, 489. citizens not to be deprived of, 13, 14. IMPAIRING CONTRACTS. See Obligatiost of Contracts. IMPEACHMENT, of judges for declaring law unconstitutional, 194, n. IMPLICATION, amendments by, not favored, 182. repeals by, 182. grant of powers by, in State constitutions, 78, 79. corporations established by, 236. IMPLIED POWERS, of municipal corporations, what are, 231-236. granted by State constitutions, 78, 79. IMPLIED PROHIBITIONS, to the States by the national Constitution, 28. upon legislative power, 194-205. IMPORTS, State taxation of, 595, 723-725. IMPOSTS, to be uniform throughout the Union, 11. what the States may lay, 23. taxation by, 608. IMPRESSMENT OF SEAMEN, not admissible in America, 364. IMPRISONMENT, for legislative contempt must terminate with the session, 160. for debt may be abolished as to existing contracts, 348. unlimited, cannot be inflicted for common-law o:Sence, 402, relief from. See Habeas Corpus. IMPROVEMENTS, owner of land cannot be compelled to make, 478, 655. betterment laws, 478. local, assessments for the making of, 611-631. See Assessments. INCHOATE RIGHTS, power of the legislature in regard to, 438. JKDSX. 829 INCIDENTAL INJURIES, by change in the law, give no claim to OOmpensatian, 473. See EidiKEiNT Domain. INCOMPETENT PERSONS, legislative authority for sale of lands of, 115, 457, 479. exclusion of, from suffrage, 752. INCONTINENCE, accusation of, against female, not actionable p&r se, '520. statutory provisions respecting, 520. » INCORPORATIONS, ^^S notice of acts for, 97, n., 162, n. waiver of defects in, by State, 97, n. charters of private, are contracts, 334-337. •, charters of municipal, are not, 228-231, 335. j control of, by police regulations, 709-716. See Charters; Municipal CorporiCtions. INDEBTEDNESS BY STATE, prohibition of, whether it pr&cludes debts by towns, counties, &c., 273, 274, n. INDECENT PUBLICATIONS, sale of, may be prohibited, 743. parties not free to make, 520. INDEMNIFICATION, of officers of municipal corporation where liability is incurred in supposed discharge of duty, 258, power of legislature to compel, 259. not to be made in case of refusal to perform duty, 259. INDEMNITY, for property taken for public use. See Eminent Domain. for consequential injuries occasioned by exercise of legal rights, 473. INDEPENDENCE, declaration of, by Continental Congress, 8, 9. new national government established by, 8. celebration of, at public expense, 281. of the traverse jury, 392. , of the bar, 408-411. INDIAN, an unnaturalized, is not a citizen nor entitled to vote, 752, n. INDIANA, special statutes licensing sale of lands forbidden, 116, n. divorces not to be granted by the legislature, 129, n exercise of the pardoning power restrained, 135, n. prohibition of special laws when general can be made applicable, 152, n. revenue bills must originate in lower house, 157, n. privilege of legislators from arrest, 160, n. title of acts to embrace the subject, M9, n. no act to be amended by mere reference to its title, 180, n. approval of laws by governor of, 185, n. 830 INDEX. INDIANA —continued. time when acts take effect, 189. liberty of speech and of the press in, 512, n. privilege of legislators in debate, 547, n. religious tests for office forbidden in, 575, n. religious belief not to be test of incompetency of witness, 586, n. persons conscientiously opposed to bearing arras excused, 586, n. private property not to be taken without compensation, 694, n. INDICTMENT, criminal accusations to be by, 374. trial on defective, 327, n., 399, 401. mast apprise accused of the charge against him, 327, n., 374, n. See Crimes. INDIVIDUAL RIGHTS, provisions for protection of, in State constitutions, 47, 48. in national Constitution, 311-314. do not owe their origin to constitutions, 49. English statutes declaratory of, 34, 312. See Personal Liberty. INELIGIBILITY, of highest candidate, how to affect election, 780. INFANTS, excluded from suffrage, 40, 753. special statutes authorizing sale of lands of, 115, 457, 479. custody of, by parents, 414, 425. emancipation of, 414. . control of, by masters, guardians, and teachers, 414, 415. INFERIOR COURTS, duty of, to pass upon constitutional questions, 195, n. distinguished from courts of general jurisdiction, 500, 501. disproving jurisdiction of, 501. INFORMALITIES, right to take advantage of, may be taken away by legislation, 454-471. do not defeat jurisdiction of court, 502, 503. waiver of, in legal proceedings, 503. INHABITANT, meaning of, in election laws, 754, 755. INITIALS, to Christian name of candidate, whether sufficient in ballot, 766-768. INJUSTICE, of constitutional provisions cannot be remedied by the courts, 87. of statutes does not render them unconstitutional, 197-201. in taxation, sometimes inevitable, 631. INNOCENCE, of accused parties, presumption of, 374-377. only to be overcome by confession in open court, or verdict, 377. conclusive presumptions against, 398, n. INDEX. 831 INQUISITORIAL TRIALS, not permitted where the common law prevails, 379. accused parties not compellable to give evidence against themselves, 380- 886. INSANE PERSONS, validating deeds of, 463, n. /; ' / ^ ^Z-? - INSANITY, ^:.....^L^,u^^^.^^-M^ y ^^J defence of, in criminal cases, 375, n. INSOLVENT LAWS, right of the States to pass, 356. congressional regulations supersede, 356. what contracts cannot be reached by, 356, 357. creditor making himself a party to proceedings is bound, 357. INSPECTION LAWS, of the States, imposts or duties under, 23. constitutionality of, 594, 721-725, 744. INSPECTORS OF ELECTIONS, judicial appointment of, 107, n. powers and duties of. See Elections. INSURRECTIONS, employment of militia for suppression of, 12. INTENT, to govern in construction of constitutions, 69. whole instrument to be examined in seeking, 71. in ineffectual contracts, maybe given effect to by retrospective legislation, 456-471. question of, in libel cases, 564-567. in imperfect ballot, voter cannot testify to, 764. what evidence admissible on question of, 768, 790. INTEREST, in party, essential to entitle him to question the validity of a law, 196; in judge, precludes his acting, 207, 506-509. of money, illegal reservation of, may be legalized, 461, 462. INTERNAL IMPROVEMENTS, giving municipal corporations power to subscribe to, is not delegating legislative power, 140. ' constitutionality of municipal subscriptions to, 263-268. special legislative authority requisite, 268. negotiable securities issued without authority are void, 269, 272, u. prohibition to the State engaging in, whether it applies to municipalities, 270-273, 274, n. retrospective legalization of securities, 454-468. INTERNATIONAL LAW, equality of States under, 3. INTERNATIONAL QUESTIONS, States no jurisdiction over, 152. INTERPRETATION, meaning of, 51, 52, n. See Construction op State Constitutions. 832 INDEX. INTER-STATE COMMERCE, regulation of, 595, 596, 717, 737. INTIMIDATION, of voters, secrecy as a protection against, 760, 772. securities against, 772-774. INTOXICATING DRINKS, submitting question of sale of, to people, 145, 146. power of States to require licenses for sale of, 716-720. power of States to prohibit sales of, 15, n., 718-720, 743. furnishing to voters, 772. annulling licenses for, 341. INTOXICATION, not an excuse for crime, 584, n. is temporary insanity,. 753, n. INTRODUCTION OF BILLS, for revenue purposes, 156, 157. generally, 164. INVASIONS, employment of militia to repel, 12. INVENTIONS, securing right in, to inventors, 12. INVOLUNTARY SERVITUDE, grafiual abolition of, in England, 359-363. as a punishment for crime, 363. See Personal Liberty. IOWA, divorces not to be granted by legislature, 129., n. exercise of the pardoning power restrained, 135, n. title of acts to embrace the subject, 169, n. power of legislature when convened by governor, 187, n. time when acts are to take effect, 190. restriction upon power to contract debts, 273. protection to person and property by law of the land, 430, n. ■ liberty of speech and of the press in, 512, n. privilege of legislators in debate, 547, n. religious tests for office forbidden in, 575, n. religious belief not to be test of incompetency of witness, 586, n. private property not to be taken without compensation, 694, n. IRREGULARITIES, in judicial proceedings, not inquirable into on habeas corpus, 423-425. do not render judicial proceedings void, 502, 503. waiver of, 503. may be cured by retrospective legislation, 454-463. effect of, upon elections, 776-782. IRREPEALABLE LAWS, legislature cannot pass, 146-148, 343. Parliament cannot bind its successors, 147. INDEX. 833 IRREPEALABLE LAWS— continued. laws which constitute contracts are invSolable, 148. whether essential powers of government can be bartered away, 337-343, 644. municipal corporations cannot adopt, ,250. JEOPARDY, party not to be twice put in, for same cause, 398-401. what constitutes, 399. when jury may be discharged without verdict, 399, 400. when nolle prosequi is an acquittal, 399. second trial after verdict set aside, 400. acquittal on some counts is a bar pro tanto to new trial, 401. varying form of the charge, 401. duplicate punishments under State and municipal laws, 239. JOURNAL OF THE LEGISLATURE, is a public record, 162. is evidence whether a law is properly adopted, 162, 163. presumption of correct action where it is dlent, 163. JUDGE, disqualification of interest, 207, 506-509. not to urge opinion upon the jury, 394-397. to instruct the jury on the law, 394. JUDGE-MADE LAW, objectionable nature of, 71, n. JUDGMENTS, conclusiveness of those of other States, 27, 28, n. general rules as to force and efEect, 60-68. for torts are not contracts, 351. must apply the law in force when rendered, 469. are void if jurisdiction is wanting, 471, 491-494, 500, 508. irregularities do not defeat, 502, 503. . See JubioiAL Proceedings ; Jorisdiction. JUDICIAL DECISIONS, of federal courts conclusive on questions of federal judsdiotion, 18. of State courts followed in other eases, 20, 21. general rules as to force and effect of, 60-68. JUDICIAL POWER, of the United States, 17, 29. See Courts of the United States. not to be exercised by State legislatures, 104, 105, 154, 482, 483, 757. what is, 108-110, 423. distribution of, 107, n. declaratory statutes not an exercise of, 110-115. such statutes not to be applied to judgments, 112-114. instances of exercise of, 114. 834 INDEX. JUDICIAL TOWER— continiied. is apportioned by legislature, 107, n. legislature may exercise, in deciding contested seats, 158. JUDICIAL PROCEEDINGS, confirmation of invalid, by legislature, 126, 456, 460. are void if court has no jurisdiction of the case, 491. jurisdiction of subject-matter, what is, 491. consent will not confer, 491. if wanting, objection may be taken at any time, 492. law encourages voluntary settlements and arrangements, 492. arbitrations distinguished from, 492. transitory and local actions, 493. jurisdiction in divorce cases, 493. necessity for service of process, or substitute therefor, 497. proceedings .in rem and in personam, 496, 497. bringing in parties by publication, 497. no personal judgment in such case, 498, 499. decree for custody of children, effect of, 499. contesting jurisdiction, 500. courts of general and special jurisdiction, 500. record of, how far conclusive, 501. irregularities do not defeat, 423, 424, 502-b04. waiver of, 503. judicial power cannot be delegated, 504. right to jury trial in civil cases, 504, 505. judge not to sit when interested, 506-509. statements in course of, how far privileged, 542-544. publication of accounts of trials privileged, 549. but must be fair and full, 550. and not ex parte, 551. and not contain indecent or blasphemous matter, 550. JUDICIARY, to advise legislature in some States, 53. construction of constitution by, 54-59. equality of, with legislative department, 58, n., 59, n. independence of, 59, n. when its decisions to be final, 60-68. appointments by, 107, n. See Courts; Judicial Power; Judicial Proceedings; Jurisdiction. JURISDICTION, of courts, disproving, 27, n. want of, cannot be cured by legislation, 126, n. of subject-matter, what it consists in, 491. not to be conferred by consent, 491, 504, n. if wanting, objection may be taken at any time, 402. in divorce cases, what gives, 493, 494. necessity for service of process, 497. irregularities do not affect, 423, 424, 50-2-501. INDEX. 835 JURISDICTION — continued. interest in judge, effect of, 506-509. general and special, distinguished, 500, 501. where it exists, proceedings not to 'be attacked collaterally, 503. in tax proceedings, 615. of federal courts, 17, 356, 526. in cases of habeas corpus, 420-422. JURY, independence of, 392-897. JURY TRIAL, how far required by United States constitution, 29, 30. the mode for the trial of criminal accusations, 389. what cases do not require, 389, n. must be speedy, 377. and public, 379. and not inquisitorial, 379. prisoner to be confronted with witnesses. 387. statement by prisoner, 380-386. See Confessions. to be present during trial, 388. jury to consist of twelve, 390, 695, n. challenges of, 391. must be from vicinage, 36, 391. must be left free to act, 392. how far to judge of the law, 393, 510-513, n. in libel cases, 564. acquittal by, is final, 395. judge to instruct jury on the law, 394. but not to express opinion on facts, 392, 397. nor to refuse to receive verdict, 395. accused not to be twice put in jeopardy, 396, 398. what is legal jeopardy, 399. when jury may be discharged without verdict, 399-401. when nolle prosequi equivalent to verdict, 399. second trial after verdict set aside, 401. right to counsel, 403. . constitutional right to jury trial in civil cases, 29, 30, 505, 664, n., 786. in cases of contempt, 389, n. in case of municipal corporations, 288, n. in habeas corpus cases, 426. JUST COMPENSATION, what constitutes, when property taken by the public, 691-703. See Eminent Domain. JUSTIFICATION, in libel cases by showing truth of charge, 568. showing of good motives and justifiable occasion, 568, unsuccessful attempt at, to increase damages, 537. 836 INDEX. K. KANSAS, power to grant divorces vested in' the coarts, 129, n. exercise of the pardoning power restrained, 135, n. requirement of general laws when they can be .made applicable, 152, n. privilege of legislators from arrest, 160, n. title of act to embrace the subject, 169, n. no act to be amended by mere reference to its title, 18Q, n. restriction upon power to contract debts, 273. liberty of speech and of the press in, 512, n. privilege of legislators in debate, 547, n. religious tests for office forbidden in, 575, n religious belief not to be test of incompetency of witness, 586, n. persons conscientiously opposed to bearing arms excused, 586, n. I private property not to be taken without compensation, 694, n. KENTUCKY, special statutes licensing sale of lands forbidden, 116, n. divorces not to be granted by legislature, 129, n. revenue bills must originate in lower house, 157, n. title of acts to embrace the subject, 169, n. restriction upon power to contract debts, 272. right of jury to determine the law in cases of libel, 894, n, protection to person and property by the law of the land, '480, n. compact with Virginia, 830, n. liberty of speech and of the press in, 511, n. privilege of legislators in debate, 547, n. exclusion of religious teachers from office, 574, n. religious liberty in, 575, n. persons conscientiously opposed to bearing arms, excused, 586, n. private property not to be taken without compensation, 694, n. L. LARCENY, abroad, punishment of, here, 149, n. LAW, common, how far in force, 34-86. See Common Law. and fact, respective province of coiirt andjury as to, 892-397, 564-567. the jury as judges of, 392-397, 564. LAW-MAKING POWER. See Legislatures op the States. LAW OP THE LAND, protection of, insured by Magna Charta, 429. American constitutional provisions, 18, 32, 429, n. meaning of the term, 431-434, 452. vested rights protected by, 488. meaning of vested rights, 438, 452, 463, 464. INDEX. 837 LAW OF THE hXNB — continued. subjection of, to general laws, 436, 437. interests in expectancy are not, 438-442. rights acquired through the marriage relation, 440. legal remedies not the subject of vested rights, and may be changed, 442. statutory privileges are not, 471. rights in action are, 444. forfeitures must be judicially declared, 444, 445, limitation laws may be passed, 447. rules of evidence may be changed, 450. retrospective laws^ when admissible, 454, 471. cannot create rights in action, 454. nor revive debts barred by statute of limitations,, 454. may cure informalities, 455-471. may perfect imperfect contracts, 355, 356, 460-47U may waive a statutory forfeiture, 461, n. may validate imperfect deeds, 460. but not as against bona fide purchasers, 465. cannot validate proceedings the legislature could not have authorized, 469, 470. cannot cure defects of juiisdiction in courts, 471, n. consequential injuries give no right to complain, 473. sumptuary laws inadmissible, 474. betterment laws, 476. unequal and partial laws, 479-491. invalid judicial proceedings, 491-509. what necessary to give courts jurisdiction, 491-494. consent cannot confer, 491. in divorce cases, 494. process must be served or substitute bad, 496, 497. proceedings in rem and in personam, 497. bringing in parties by publication, 497. no personal judgment in such case, 498, 499. process cannot be served in another State, 498. jurisdiction over guardianship of children in divorce cases, 499. courts of general and special jurisdiction, and the rules as to ques- tioning their jurisdiction, 500, 501. irregular proceedings do not defeat jurisdiction, 502, 503. waiver of irregularities, 503. judicial power cannot be delegated, 504, judge cannot sit in his own cause, 506. objection to his interest cannot be waived, 509. right to jury trial in civil cases, 29, 30, 505, 664, n., 786. See Taxation-; Eminent Domain ; Poi-ice Power. LAWS, ENACTMENT OF See Statutes. LAWS IMPAIRING OBLIGATION OF CONTRACTS. See Obwga- TiON OF Contracts. 838 INDEX. LAWS, EX POST FACTO. See Ex Post Facto Laws; Retrospec- tive Laws. LEGAL PROCEEDINGS, publication of accounts of, how far privileged, 549-552. statements in course of, when privileged, 542-547. See Judicial Proceedings. LEGAL TENDER, United States Treasury notes may be made, 13, n. only gold and silver to be made, by the States, 23. LEGISLATIVE DEPARTMENT, division of, 156. not to exercise executive or judicial powers, 102-136. equality of, with other departments, 58, n. discretion of, not to be controlled by the courts, 55, n., 112. See Legislatures op the States. LEGISLATIVE DISCRETION, courts not to control, 55, n., 202, 203, n. LEGISLATIVE DIVORCES, whether they are an exercise of judicial power, 128. impropriety of, 129, 130, n. LEGISLATIVE MOTIVES, not to be inquired into by courts, 220-222, 253, n. presumption of correctness of, 220-222, 253, n. LEGISLATIVE POWERS, enactments in excess of, are void, 5, 207. distinguished from judicial, 108, 109. cannot be delegated, 137, 248. exercise of, will not give right of action, 2.53. cannot extend beyond territorial limits, 149. grant of, will not warrant exercise of executive or judicial powers, 104- 136. LEGISLATIVE PROCEEDINGS, privilege of publication of, 562-564. members not to be questioned for words in course of, 546. LEGISLATORS, contested elections of, to be decided by house, 158. duty of, not to violate constitution, 217. presumed correctness of motives, 220-222, 253, n. privilege of, in debate, 546. right of, to publish speeches, 562-564. LEGISLATURES, COLONIAL, statutes adopted by, in force at Revolution, 35. LEGISLATURES OF THE STATES, power to originate amendments to State constitution, 42. construction of constitution by, 51-56. deference due to judicial construction by, 66, n. powers of, compared with those of Parliament, 102-104, 205. not to exercise executive or judicial powers, 104, 208, 482, 757. INDEX. B39 LEGISLATURES OF THE STATES — con^inuerf. complete legislative power vested in, 104, 201, 204, 206. specification of powers in constitution unnecessary, 105. declaratory statutes not the exercise of judicial power, 110-115. cannot set aside judgments, grant new trials, &c., 113, 114, 484. how far may bind parties by recital of facts in statutes, 115. power of, to grant divorces, 128-133. delegation of legislative power inadmissible, 137-148. I but conditional legislation is not, 137, 138. nor making charters subject to acceptance, 139. ' nor conferring powers of local government, 138, 225. irrepealable legrislation cannot be passed, 146, 343. but exemptions from taxation may be made, 148, 337, 838, 632. power of, limited to territory of the State, 149.' discretionary powers of, how restricted, 152-154. courts no control over, 153.*" enactment of laws by, 155-199. must be under the constitutional forms, 155. parliamentary common law of, 156, 158, 159. division of, into two houses, 156. when to meet, 157. prorogation by executive, 157. rules of order of, 158. election and qualification of members, determination of, 158. contempts of, may be punished by, 158, 159. but not by committees, 161, 162. members of, may be expelled, 159. their privilege from arrest, &c., 159. committees of, for collection of information, &c., 161. power of, to terminate with session, 162. journals of, to be evidence, 162. action of, to be presumed legal and correct, 163. motives of members not to be questioned, 220-222, 253, n. " lobby " services illegal, 163. bills, introduction and passage of, 164-169. three several readings of, 94r-98, 167. yeas and nays to be entered on journal, 168. vote on passage of, what suflScient, 168. title of, formerly no part of it, 169. constitutional provisions respecting, 95, 169. purpose of these, 170. they are mandatory, 179. particularity required in stating object, 172. what is embraced by title, 174. effect if more than one object embraced, 176. efiect if act is broader than title, 177. amended statutes, publication of, at length, 180-183. repeal of statutes at session when passed, 183. signing of bills by officers of the houses, 183. • 840 INDEX. LEGISLATURES OF THE STATES — continued. approval and veto of bills by governor, 184. governor's messages to, 187. special sessions of, 187. when acts to take effect, 187< power of the courts to declare statutes unconstitutional, 192.-222. full control of, over municipal corporations, 228-231, 281-294. legalization by, of irregular municipaili action, 279, of invalid contracts, 353, 336, 434-471. of irregular sales, taxationy &c., 456. not to pass bills of attainder, 24, 44^, 316. nor ex post facto laws, 24, 44, 321. nor laws violating, obligation of contracts, 24, 44, 148, 328. See Obligation of Contracts. insolvent laws, what maly be passed, 356. right to petition, 426. vested rights protected against, 429-491. See Law of the Land. control by, of remedies in cffminal cases, 320-328. "^ in civil cases, 347-356, 442-454. control of rules of evidence, 349, 450,'' may change estates in land, 438. and rights to property under the marriage relation, 440. limitation laws may be passed by, 447. retrospective legislation by, 454-471. See Retrospectivh Legislation. privileges granted by, may be recalled, 471. consequential injuries from action of, 473. sumptuary laws, 474. betterment laws, 476, imequal and partial legislation, 479, general laws not always essential, 479, 480. special rules for particular occupations, 480, 481. proscriptions for opinion's sake, 481, 482. suspensions of laws in special cases, 482, 483. special remedial legislation, 484. special franchises, 485-487. restrictions upon suffrage, 486, 752. power of, to determine for what purposes taxes may be levied, 599-607. 630, 631. cannot authorize property to be taxed out of its district, 615. must select the subjects of taxation, 632. may determine necessity of appropriating private property to public use, 648, 663. but the necessity for taking particular property is a judicial question, 663, n. authority of, requisite to the appropriation, 648. cannot appropriate property to private use, 651, 652. INDEX. 841 LETTERS, legal inviolability of, 367, n., 371, n. LEVEES, establishment of, under police power, 627, 732. special assessments for, 628, LIBEL. See Liberty of Speech and of the Press. LIBERTY, personal. See Personal Liberty. of the press. See Liberty of Speech and of the Press. religious. See Religious Liberty. of discussion, 426. of bearing arms, 427. of petition, 426. charters of, 34. LIBERTY OF SPEECH AND OP THE PRESS, Hamilton's reasons why protection of, by bill of rights,, was not impor- tant, 311. opposing reasons by Jefferson, 313, n. Congress to pass no law abridging, 510. State constitutional provisions respecting, 510, n. these create no new rights, but protect those already existing, 511-513. liberty of the press neither well defined nor protected at the common law, 513, censorship of publications, 513, 514. debates in Parliament not suffered to be published, 514. censorship in the Colonies, 514, 515. secret session of Constitutional Convention, 515. and of United States Senate, 516. what liberty of speech and of the press consists in, 516, 517. general purpose of the constitutional provisions^ 517, 518. rules of common-law liability for injurious publications, 518-523. modification of, by statute, 520. privileged cases, 523-525. libels upon the government indictable at the common law, 525. prosecutions for, have ceased in, England, 526. sedition law for punishment of, 526. whether now punishable in America, 526-528. criticism upon ofScers and candidates for office, 529-541'. statements in the course of judicial proceedings, 542-544. privilege of counsel, 544-546. privilege of legislators, 546-549. publication of privileged communications through the press, 549-552. publication of speeches of counsel, &o., not privileged, 549. fair and impartial account of judicial trial is, 550. whole case must be published, 550. must be confined to what took place in court, 550. must not include indecent or blasphemous matter, 550. but not of ex parte proceedings, 5.jl. 842 INDEX. LIBERTY OF SPEECH AND OF THE PRESS — continued. privilege of publishers of news, 533-562. publishers generally held to same responsibility as other persons, 556. not excused by giving source of information, 557. nor because the publication was without their personal knowledge, 557. nor by its being a criticism on a candidate for office, 537, n., 539, n., 541, n., 542, n., 557. nor by its constituting a fair account of a public meeting, 557. criticisms by, on works of art and literary productions, 557. exemplary damages against publishers, 560-562. publication of legislative proceedings, how far privileged, 562-564. rule in England, 562, 563. the case of Stockdale v. Hansard, 563, n. publication of speeches by members, 564. the jury as judges of the law in libel cases, 564-567. Woodfall's and Miller's cases, 564, 565. Mr. Fox's Libel Act, 566. the early rulings on the subject in America, 566, 567. provisions on the subject in State constitutions, 510, n., 567, n, the truth as a defence when good motives and justifiable ends in the publication can be shown, 568-570. burden of proof on the defendant to show them, 569. that publication was copied from another source is not sufficient, 570. motives or character of defendant no protection, if publication is false, 570. LICENSE, annulling, 341. of occupations in general, 743. for ferry across navigable waters, 731. revoking, where a fee was received therefor, 341, n. LICENSE FEES, when are taxes, 243, n., 609, n. limited generally to necessary expenses, &c., 248, n. LICENSER, of intended publications, 513-518. See Liberty of Speech akd of the Press. LICENTIOUSNESS, distinguished from liberty, 538, 575. LIEN, statutory, may be taken away, 347, n. LIFE, action for taking, through negligence, &c., 715. not to be taken but by due process of law, 14, 24, 429. LIMITATION, of time to apply for compensation for property taken by public, 693. LIMITATION LAWS, may cut ofE vested rights, 447-4.i0. opportunity to assert rights must first be given, 449, 450. cannot operate upon party in possession, 449. INDEX. 843 LIMITATION LAWS — continued. legislature to determine what is reasonable time, 450. suspension of, 448, n., 482. legislature cannot revive demands ban-ed by, 448. legislature may prescribe form for new promise, 356. do not apply to State or nation, 450, n. LIMITATIONS TO LEGISLATIVE POWER, are only such as the people have imposed by their constitutions, 104, lOov See Legislatures of the States. LITERARY PRODUCTIONS, copyright to, Congress may provide for, 12. privilege of criticism of, 557. LOBBY SERVICES, contract for, unlawful, 163-165, n. LOCAL ASSESSMENTS. See Assessments. LOCAL OPTION LAWS, constitutionality of, 145, 146. LOCAL SELF-GOVERNMENT, State constitutions framed in reference to, 47, 207. the peculiar feature of the American system, 223. See Municipal Corporations. LOCAL TAXATION. See Taxation. LOCALITY OF PROPERTY, may g^ve jurisdiction to courts, 496. taxation dependent upon, 615, 634. LOG-ROLLING LEGISLATION, constitutional provisions to prevent, 169-183. LORD'S DAY, laws for observance of, how justified, 584, 725. LOTTERIES, prohibition of, 99, n. LOUISIANA, code of, based upon the civil law,<38, n. divorces not to be granted by special laws, 129, n. revenue bills must originate in lower house, 157, n. title of acts to embrace the object, 169, n. no act to be amended by mere reference to its title, 181. time when acts are to take effect, 190. liberty of speech and of the press in, 512, n. privilege of legislators in debate, 547, n. privileges not to be granted on religious grounds, 575, n. " damaging " property in the course of public improvements, 689, n. exclusions from suffrage in, 753, n. LUNATICS, excluded from suffrage, 753. special statutes for sale of lands of, 115 et seq. 844 INDEX. M. MAGNA CHARTA, grant of, did not create constitutional government, 5, n. a declaratory statute, 34, 312. its maxims the interpreters of constitutional grants of power, 208. provision in, for trial by peers, &o., 429. MAILS, inviolability of, 371, n. MAINE, judges to give opinions to governor and legislatarej. S3, n. revenue bills must originate in lower house, 157, n. right of jury to determine the law in cases of libel, 394, n. protection to person and property by the law of the land, 430, n. liberty of speech and of the press in, 510, n. privilege of legislators in debate, 547, n. religious tests for office forbidden in, 575, n. persons conscientiously opposed to bearing arms, excused, 586, n. periodical valuations for taxation, 610, 611. exclusions from suffrage in, 753, n. MAJORITY, what constitutes two thirds, 168. what sufficient in elections, 747, n., 748, n., 771. MALICE, presumption of, from falsity of injurious publications, 523, 564. in refusing to receive legal votes, 776. presumption in cases of homicide, 398,, n. MANDAMUS, to the executive, 136. to compel registration of votei-s, 758. to compel canvassers to perform duty, 784. MANDATORY STATUTES, doctrine of, 88-93. constitutional provisions always mandatory, 88-98, 168, 179, 180. but courts cannot always enforce, 154. MANUFACTURING PURPOSES, whether dams for, can be established under right of eminent domain, 657-659. taxation in aid of, 601, n., 602, n. MARKETS, State power to regulate, 744. MARRIAGE, validating in-valid, by retrospective legislation, 458. legislative control of rights springing from, 440. between whites and blacks, 481, n. power of the legislature to annul, 128. See Divokck; Married Women. ISTDEX. 845 MARRIED WOMEN, fixclusion of, from suffrage, 40, 753. statutes enlarging rights of, 75, n. waiver of rights by, 215. testimony of, in favor of husband, 385, n. invalid deeds of, may be validated by legislature, 463, control of, by husband, 413, See Divorce; Dowdr. MARSHES, draining of, and assessments therefor, 627, 656. MAKTIAL LAW,. when may be declared, 374, n. citizen not to be tried by, 390, n. legality of action under, 445. danger from, 773, 774. MARYLAND, special statutes licensing sale of lands forbidden, 116, n. divorces not to be granted by Jegislature, 129, ii. limited time for introduction of new bills, 106. title of acts to embrace the subject, 169, u. no act to be amended by mere reference to its title, 180. right of jury to determine the law in all criminal cases, 394, n. protection of person and property by law of the land, 430, n. liberty of speech and of the press in, 511, u. privilege of legislators in debate, 547, n. exclusion of religious teachers from office, 574, n. religious tests for office in, 575, n. private property ndt to be taken without compensation, 694, n. exclusions from suffrage in, 753, a. MASSACHUSETTS, judges of, to give opinions to governor and 'legislature, 53, n. constitutional provision respecting divorces, 129, n. revenue bills must originate in lower house, 157 n. protection of person and property by law of the land, 480, n. liberty of speech and of the press in, 510, n. privilegeof legislators in debate, 547, n. periodical valuations for taxation, 611. exclusions from suffrage in, 753, n. MASTER, of apprentice, servant, and scholar, power of, 415. MAXIMS, of government, laws in violation of, 202-203. of the common law, what they consist in, 32. gradual growth and expansion of, 69. for construction of statutes, a statute is to be construed as prospective, and not retrospective in its operation, 77. 846 INDEX. MAXIMS — continued. such an interpretation shall be put upon a law as to uphold it, and give effect to the intention of the law-makers, 71, 72. words in a statute are presumed to be employed in their natural and ordinary sense, 73, 101, n. contemporary construction is best and strongest in the law, 81-86. a statute is to be construed in the light of the mischief it was de- signed to remedy, 79, 80. he who considers the letter merely, goes but skin deep into the meaning, 101, n. statutes in derogation of the common law are to be construed strictly, 75. an argument drawn from inconvenience is forcible in the law, 73, n., 82. general principles, no man can be judge in his own cause, 506-509. consent excuses error, 196, 214, 503. the law does not concern itself about trifles, 689. that to which a party assents is not in law an injury, 214. no man shall be twice vexed for one and the same cause, 60-62. every man's house is his castle, 33, 364. that which was originally void cannot by mere lapse of time become valid, 449. necessity knows no law, 739. so enjoy your own as not to injure that of another, 706. MEANING OF WORDS. See Definitions. MEASURES AND WEIGHTS, regulation of, 744. MEMBERS OF THE LEGISLATURE, contested seats of, decided by the house, 158. punishment of, for contempts, &c., 158, 159. power of the houses to expel, 159. exemption of, from arrest, 100. publication of speeches by, 562-564. privilege of, in debate, &c., 546-519. MICHIGAN, right of, to admission to the Union under ordinance of 1787, 39, n. repeal of acts of Parliament in, 37, n. repeal of laws derived from France, 38, n. right of married women to property in, 75, ■■. special statutes authorizing sale of lands forbidden, 117, n. divorces not to be granted by the legislature, 129, n. privilege of legislators from arrest, 160. limi^ted time for introduction of new bills, 165, 166. title of acts to embrace the object, 169, n. no act to be amended by mere reference to its title, 180, n. special legislative sessions, 187, n. time when acts' are to take effect, 188. restriction upon power to contract debts, 273, n. INDEX. 847 MICHIGAN — continued. right of jury to determine the law in cases of libel, 394. protection of person and property by law of the land, 430, n. • liberty of speech and of the press in, 512, n. privilege of legislators in debate, 547, n. religious tests for office in, 575, n. persons conscientiously opposed to bearing arms excused, 586, n. religious belief not to be test of incompetency of witness, 586, n. periodical valuations for taxation, 611. MILITARY BOUNTIES, by municipal corporations, when legal, 274-283. MILITARY COMMISSIONS, when not admissible, 390, n. See Martial Law. MILITIA, control of, 12, 13, 29. not to be called out on election days, 773, 774. MILL-DAMS, construction of, across navigable waters, 732. abatement of, as nuisances, 740. MILL-DAM ACTS, do not confer vested rights, 473. constitutionality of, 657-661. MILLERS, regulation of charges of, 734-736. taxation in aid of, 601, n. MINNESOTA, divorces not to be granted by the legislature, 129, n. revenue bills must originate in lower house, 157, n. title of acts to embrace the subject, 169, n. approval of laws by tiie governor of, 185 protection of person and property by law of the land, 430, n, liberty of speech and of the press in, 512, n. privilege of legislators in debate, 547, n. religious tests for office forbidden in, 575, n. religious belief not to be test of incompetency of witness, 586, n. private property not to be taken without compensation, 694, n. exclusions from suffrage in, 753, n. MINORS. See Infants. MISCHIEF TO BE REMEDIED, may throw light on constitutional clause, 80, 219. MISSISSIPPI, constitutional provision respecting divorces, 129, n. exercise of the pardoning power restrained, 135, n. revenue bills must originate in lower house, 157, n. privilege of legislators from aiTest, 160, n. time when acts are to take effect, 188. municipalities of, restrained from aiding public improvements, 268, n. 848 INDEX. MISSISSIPPI — continued. protection of person and property by law of the land, 430, n. liberty of speech and of the press in, 513, n. religioas tests for oflSce in, S74, 575, n. religious liberty in, 575, n. private property not to be taken without compensation, 694, b. exclusions from suffrage in, 758, n. MISSOURI, special statutes licensing sale of lands forbidden, 116, n. divorces not to be granted by legislature, 129, n. restrictions upon legislative power in constitution of, 1-52, n. privilege of legislators from arrest, 160, n. title of act to embrace the subject, 169, n. no act to be amended by mere reference to its title, 180, n. special legislative sessions, 187, n. municipalities restrained from aiding public improvements, 268, n. right of jury to determine the law in cases of libel, 394, n. protection of person and property by law of the land, 430, a. liberty of speech and of the press in, 512, n. privilege of legislators in debate, 547, n. religious tests for office forbidden in, 575, n. religious liberty in, 575, n. persons conscientiously opposed to beaiing arms excused, 5S6, n. religious belief not to be test of incompetency of witness, 586^ n. " damaging" property in the course of public improvements, 689,, n. private property not to be taken without compensation, 694, n. exclusions from suffrage in, 753, n. MONEY, coinage and regulation of, 12, 28. legal tender, 13, 20. punishment of counterfeiting, 12, 29. bills for raising, to originate in lower house in some States, 157. cannot be appropriated under right of eminent domain, 647, 648. MONOPOLIES, odious nature of, 485. grant of, not presumed, 485. in navigable waters, 729-731. MORAL OBLIGATIONS, recognition of, by municipal bodies, .258-260. MORTGAGES, right to possession under, cannot be taken away by legislature, 352. MOTIVES, of legislative body not to be inquired into by courts, 163, 220. nor those of municipal legislative body, 257. good, when a defence in libel cases, 568. MUNICIPAL BODIES, do not decide upon disputed elections, 158, n. INDEX. 849 MUNICIPAL CORPORATIONS, question of formation or division of, may be submitted to people interested, 139, 140. question of engaging in internal improvements may also be submitted, 139, 263-269. powers of local government may be conferred upon, 139, 223. general view of the system, 223-310. legislature prescribes extent of powers, 227. charter of, the measure of their authority, 227. complete control of, by legislature, 203, n., 227-231, S81. whether it may compel them to assume obligations aside from their ordinary functions, 281-288. charter of, not a contract, 229, 333. implied powers of, 231, 258. effect of changes in, 228, n. charter to be strictly construed, 231, 232. contracts ultra vires, void, 233, 236. negotiable paper issued by, when valid, 263-269, 270-272, n. may exist by prescription, 236. powers thereof, 238. what by-laws they may make, 231, 238. must not be opposed to constitution of State or nation, 238. nor to charter, 239. nor to general laws of the State, 239, 244. nor be unreasonable, 240. nor uncertain, 243. cannot delegate their powers, 247-253. nor adopt irrepealable legislation, 250-253. nor preclude themselves from exercise of police power, 250-253. nor grant away use of streets, 250-253. incidental injuries in exercise of powers give no right of action, 253-257. nor injuries from failure to exercise powers, 254, 255. liability of, for negligence of officers, 256, 257, 303, n. may indemnify officers, 258-260. but not for refusal to perform duty, 259, n., 262. may contract to pay for liquors destroyed, 260, n. may hold property in trust for schools, 225, n. or for other charities, 228, 229, n. powers of, to be construed with reference to the purposes of their creation, 260. will not include furnishing entertainments, 261. or loaning credit, 262. or offering rewards, or paying for lobby services, 262, n. must be confined to territorial limits, 263. constitutional prohibitions of private aid taxes, 268. power of, to raise bounty moneys, &c., 274. in respect to nuisances, 741, 742, n. legislative control of corporate property, 288-294, 333, 334, 351. may be made liable for destruction of property in riots, ^93, n. 54 850 INDEX. MUNICIPAL CORPORATIONS — continued. towns, counties, &o., how differing from chartered coi-porations, 294, 302-304. judgments against, may be collected of corporators, 295-301, but only in New England, 800. not liable for failure of officers to perform duty, 301. chartered corporations undertake for performance of corporate duty, 302. liability to persons injured by failure, 302-308. corporate organization how questioned, 309, 310. imperfect acts of,'may be validated, 459, 460, 467. must tax all property within their limits alike, 615-620. cannot tax property not lying within their limits, 615. bounds of, cannot be arbitrarily enlarged in order to bring in property for taxation, 616. obtaining water for, under right of eminent domain, 655, 656. taking of lands for parks for, 656, n. MUTE, wilfully standing, when arraigned, 377, n. * N. NATION, definition of, 3. distinguished from State, 3. See United States. NATURALIZATION, power of Congress over, 12. NAVIGABLE WATERS, made free by ordinance of 1787, 37, n. right of States to improve and charge toll, 37, n., 38, n., 731, n. what are, and what not, 726. are for use of all equally, 726. general control of, is in the States, 728. congressional regulations, when made, control, 728, 729. States cannot grant monopolies of, 729. States may authorize bridges over. 730. when bridges become nuisances, 731. States may establish ferries across, 731. States may authorize dams of, 732. regulation of speed of vessels upon, 732. rights of fishery in, 642. frontage upon, is property, 670, 671. See Waterco0rse8. NAVIGATION, right of, pertains to the eminent domain, 643. See Navigable Waters. INDEX. 851 NEBRASKA, divorces not to be granted by legislature, 129, n. privilege of legislators from arrest, 160, n. title of acts to embrace the subject, 169, n. no act to be ameuded by mere reference to its title, 180, n. right of jury to determine the law in cases of libel, 394, n. liberty of speech and of the press in, 512, n. privilege of legislators in debate, 547, n. religious tests for office forbidden in, 575, n. religious belief not to be test of incompetency of witness, 586, n. " damaging " property in the course of public improvements, 689. disqualifications for suffrage in, 753, n. NECESSITY, Constitution of United States compelled by, 9, n. is the basis of the right of eminent domain, 643. extent of property to be taken is limited by, 664. destruction of buildings to prevent spread of fire, 739. NEGLIGENCE, as a foundation for rights under betterment laws, 477. carriers of persons may be made responsible for deaths by, 715. in the construction of public works, may give right of action, 703. NEGOTIABLE PAPER, when municipal corporations liable upon, 263, 269, 270-272, n. NEVADA, special statutes licensing sale of lands forbidden, 116, n. divorces not to be granted by legislature, 129, n. title of act to embrace the subject, 170, n. no act to be amended by mere reference to its title, 180, n. special legislative sessions, 187,- n. protection to person and property by law of the land, 430, n. liberty of speech and of the press in, 512, n. religious tests for office forbidden in, 575, n. religious belief not to be test of incompetency of witness, 586, n. private property not to be taken without compensation, 694, n. disqualifications for suffrage in, 753, n. NEW ENGLAND CONFEDERACY, of 1643, why formed, 7, NEW HAMPSHIRE, judges of, to give opinions to the governor and to the legislature, ^53, n. causes of divorce to be heard by the courts, 129, n. revenue bills must originate in lower house, 157, n. approval of laws, 184, n. municipalities restrained from aiding public improvements, 268, n. protection to person and property by law of the land, 430, n. constitutional provision respecting retrospective laws, 455, n. liberty of speech and of the press in, 510, n. privilege of legislators in debate, 547, n. religious liberty in, 576, n. . disqualifications from suffrage in, 753, n. 852 INDEX. NEW JEUSEY, special statutes licensing sale of lands forbidden, 116, n. divorces not to be granted by legislature, 129, n. revenue bills must originate in lower house, 157, n. title of act to embrace the object, 169, n. no act to be amended by mere reference to its title, 180, n. liberty of speech and of the press in, 511, n. privilege of legislators in debate, 547, n. religious tests for oflSce forbidden in, 575, n. • disqualifications from suffrage in, 753, n. NEW STATES, admission of, 41-51, NEW TRIALS, not to be granted by the legislature, 113, 484. not granted on application of State in criminal cases, 384. may be had after verdict set aside on application of defendant, 400. but not on counts on which he was acquitted, 401. See Jeopardy, NEW YORK, amendment of constitution of, 42, n. divorces to be granted only in judicial proceedings, 129, n. title of act to express the subject, 170, n. approval of laws by governor of, 185. right of jury to determine the law in cases of libel, 394,. n. protection to person and property by law of the land, 430, n. liberty of speech and of the press in, 510, n. privilege of legislators in debate, 547, n. religious liberty in, 575, n. persons conscientiously opposed to bearing arms excused, 586, n. religious belief not to be test of incompetency of witness, 586, n. NEWSPAPERS, publication of privileged communications in, 549. whether they have any privilege in publishing news, 553. privilege not admitted by the courts, 554-556. when publisher not liable to vindictive damages, 560. See Liberty of Speech and of the Press. NOBILITY, titles of, forbidden to be granted, 28. NOLLE PROSEQUI, when equivalent to acquittal, 399. NON COMPOTES MENTIS, legislative authority for sale of lands of, 115. excluded from suffrage, 753. NON-RESIDENT PARTIES, subjecting to jurisdiction of court by publication, 497-500. restricted effect of the notice, 499. discrimination in taxation of, 597. INDEX. 853 NORTH CAROLINA, ratification of constitution by, 9. divorces not to be granted by legislature, 129, n. protection to person and property by law of the land, 430, n. liberty of speech and of the press in, 512, n. religious tests for office in, 574, n. persons conscientiously opposed to bearing arms excused, 586, u. disqualifications from suffrage in, 753, n. NOTICE, necessity for, in legal proceedings, 495-500. right to, in tax cases, 610, n. bringing in non-resident parties by publication of, 497. of elections, when essential to their validity, 759. NUISANCE, liability of municipal corporations for, 250, 252-257, 308, 309, n. ■when bridges over navigable waters are, 730. municipal control of, 248, n. abatement at expense of land-owner, 741. power of municipal corporations over, 741, n., 742, n. when dams are, and may be abated, 740. obstructions in navigable streams are, 730, 732. forbidding use of cemeteries which have become, 740. general power in the States to abate, 741. created by public, not to be abated at expense of individual, 742, n. O. OATH, of attorneys, 404, n. test, may be punishment, 318, n. of voter, when conclusive of his right, 776. blasphemy and profanity punishable by law, 580-583. OBJECT OF STATUTE, in some States required to be stated^in title, 169-180. OBLIGATION OF CONTRACTS, States not to pass laws violating, 24, 148, 328. what is a contract, 328-342. agreements by States are, 328. executed contracts, 329. appointments to office are not, 331. municipal charters are not, 229, 331. franchises granted to municipal corporations are not, 333. but grants of property in trust are, 334.*^ and grants of property for municipal use, 289. private charters of incorporation are, 334. V whether an exemption from taxation is, 148, 337. V^ it is if granted for a, con.sideration, 338. 854 INDEX. OBLIGATION OF CONTRACTS— con«m«erf. whether right of eminent domain can be relinquished, 339. or the right to exercise the police power, 340. change in general laws of the State does not violate, 343. nor divorce laws, 344. such laws not to devest rights in property, 434. what obligation consists in, 344. remedies for enforcement of contracts may be changed, 347. imprisonment for debt may be abolished, 348. exemptions from execution may be increased, 348. rules of evidence may be changed, 349. but all remedy cannot be taken away, 350. a judgment fOr a tort is not a contract, 351. repeal of statute giving remedy cannot destroy contracts, 352. appraisement laws cannot be made applicable to existing debts, 352. right to possession under mortgages cannot be taken away, 352. nor time to redeem lands shortened or extended, 353. laws staying execution, how far invalid, 354. when power of municipal taxation may not be taken away, 355. stockholders liable for corporate debts may not be released by law, 355. whether a party may release, by contract, a privilege granted for reasons of State policy, 215, 355. when a contract requires new action to its enforcement, changes may be made as to such action, 355. new promise to revive a debt may be required to be in vn'iting, 356. laws validating invalid contracts do not violate Constitution, 356. nor laws Extending corporate franchises, 356. State insolvent laws, how far valid, 356, 357. effect of police laws, 707-742. OBSCENITY, in legal proceedings, not to be published, 550. sale of obscene books and papers may be prohibited, 742, 748. OBSCURITIES, aids in interpretation of, 79-85. See CoNSTEDCTioN OP State Constitutions. OBSTRUCTIONS TO NAVIGATION, when bridges and dams to be considered such, 730-732. when channels cut by private parties are private property, 727, 728. OCEAN. See High Seas. OFFICE, constitutional provisions not changeable by law, 79, n. temporary appointments to, 79, n. adjudging the forfeiture of, 110, n. appointments to, do not constitute contracts, 331. whether they pertain to the executive, 133, n., 134, n. right to, not to be contested on habeas corpus, 424, n. eligibility to, 748, n. INDEX. 855 OFFICER, duties of, when cannot be taken away, 79, n., 332, n. protection of dwelling-house against, 33, 364. general warrants to, are illegal, 364-368. may break open house to serve criminal warrant, 368. service of search-warrant by. See Searches and Seizures. privilege of criticism of, 529, 559, n. removal of, 133, n., 134, n., 332, n. constitutional qualifications cannot be added to, by the legislature, 79. duty of, when doubtful of constitutional construction, 88. of the legislature, election of, 158. dejure, who is, 750. de facto, who is, 750, 777. municipal, may be indemnified by corporation, 258. but not for refusal to perform duty, 260, n. election of. See Elections. appointments to, not necessarily an executive function, 133, 134. OHIO, general laws to be uniform, 77, n. legislature not to grant divorces nor exercise judicial power, 129, n. legislature forbidden to exercise the appointing power, 134, n. title of act to embrace the subject, 169, n. no act to be amended by mere reference to its title, 180, n. constitutional provision respecting retrospective laws, 456, n. liberty of speech and of the press in, 511, 512, n. privilege of legislators in debate, 547, n. religious tests for office forbidden in, 575, n. religious belief not to be test of incompetency of witness, 586, n. private property not to be taken without compensation, 694, n. OMNIPOTENCE OF PARLIAMENT, meaning of the term, 6, 102, 208. OPINION, of courts, in some States, executive or legislature may require, 53. proscription for, is unconstitutional, 481. on religious subjects to be free, 571, 572. religious tests forbidden in some States, 574, 575 n. of witnesses on religious subjects not to constitute disqualification in some States, 586, n. judicial, force of, as precedents, 60-68. ORDINANCE OF 1787, how far still in force, 37, n. admission of States to the Union under, 39, n. ORDINANCES, MUNICIPAL. See By-Laws. OREGON, special statutes licensing sale of lands forbidden, 116, n. divorces not to be granted by legislature, 129, n. exercise of the pardoning power restrained, 135, n. revenue bills to originate in lower house, 157, n. privilege of legislators from arrest, 160, n. 856 INDEX. OREGON — continued. title of act to embrace the subject, 169, n. no act to be amended by mere reference to its title, 180, n. liberty of speech and of the press in, 512, n. privilege of legislators in debate, 547, n. religious tests for office forbidden in, 575, n. persons conscientiously opposed to bearing arms, excused, 586, n. private property not to be taken without compensation, 694, n. disqualifications from suffrage in, 753, n. OVERRULING DECISIONS, when should take place, 66. P. PAPERS, private, exempt from seizure, 364-372. protected the same as property, 487, n. PARDON, power of, to be exercised by governor, 184, n. constitutional provisions as to rule's for, 135, n. power to, does not include reprieves, 135, n. PARENT, right of, to custody of child, 414. respective rights of father and mother, 425. PARLIAMENT, power of, to change the constitution, 6, 102, 208. acts of, adopted in America, 34, 35. repeal of acts of, 37, n. comparison of powers with those of State legislatures, 102-104, 208. may exercise judicial authority, 103. bills of attainder by, 314. publication of proceedings of, not formerly allowed, 514. publication of speeches by members, 562-564. publication of reports and papers of, 562-564. PARLIAMENTARY LAW, influence of, in construction of constitutions, 156. legislative power in regard to, 158. power to preserve order, &c., under, 158. privilege by, of members from arrest, 160. PARTIAL LEGISLATION, legislature to govern by equal laws, 479-491. special laws for particular individuals not permissible, 482. suspensions of laws not allowed in special cases, 482. regulations for special localities or classes, 484. equality of rights, &c., the aim of the law, 485, strict construction of special privileges and grants, 486, 487, 488. and of discriminations against individuals and classes, 486. and of statutes in derogation of the common law, 75, n. citizens of other States not to be discriminated against, 489. INDEX. 857 PARTICULAR INTENT, control of, by general intent, 73, n. " PARTIES, defendants in criminal suits, evidence of, 384-386. not compellable to testify against themselves, 379, 384, 385. how subjected to jurisdiction of courts, 495-499. estopped by judgment, 62. PARTITION, legislature may authorize sale of lands for purposes of, 119. PASSENGERS, power of States to require report of, from carriers, and to levy tax upon, 724. making carriers responsible for safety of, 715. requirement of equal privileges to, 712, n. PASTURAGE, right of, in public highway, is property, 671. PATENTS, power of granting, is in the United States, 12. States may regulate use of patented articles, 12, n. PAUPERS, exclusion of, from suffrage, 753. PAVING STREETS, assessments for, not within constitutional provisions respecting taxation, 612. special taxing districts for, 617-626. assessments may be made in proportion to benefits, 623. or in proportion to street front, 624. but each separate lot cannot be made a separate district, 625. PEACE AND WAR, power over, of the revolutionary Congress, 8. of Congress under the Constitution, 12. ' PENALTIES, for the same act under State and municipal laws, 239, 240, n., 241, n. given by statute may be taken away, 443, 472. for violation of police regulations, 745. PENNSYLVANIA, divorces not to be granted by legislature, 129, n. revenue bills must originate in lower house, 157, n. title of act to embrace the subject, 170, n. time when acts take effect, 190. right of jury to determine the law in cases of libel, 394, n, protection to person and property by law of the land, 430, n. liberty of speech and of the press in, 511, n. privilege of legislators in debate, 547, n. religious tests for office in, 574, n. injuring of property in course of public improvements, 689. private property not to be taken without compensation, 694, n. experiment of, with single legislative body, 156, n. 858 INDEX. PEOPLE, reservation of powers to, by national Constitution, 29. sovereignty vested in, 39, 747. formation and change of constitutions by, 39. who are the, 40, 41, 752. exercise of sovereign powers by, 752-760. PERSONAL LIBERTY, gradually acquired by servile classes in Great Britain, 359-364. constitutional prohibition of slavery in America, 363. of bills of attainder, 24, 48, 314. See Bills of Attainder. of ex post facto laws, 24, 48, 320. See Ex Post Facto Laws. of unreasonable searches and seizures, 364. See Searches and Seizures. of quartering soldiers in private houses, 373. protection of, in one's dwelling-house, 33, 364, 373. criminal accusations, how made, 374. bail for accused parties, 375, 376. unreasonable, not to be demanded, 377. trials for crimes, 877-411. See Crimes. meaning of the term, 412, 484. legal restraints upon, 413-416. right to, in England, did not depend on any statute, 416. reason why it was not well protected, 416, 417. evasions of the writ of habeas corpus, 417, 418. the habeas corpus act, 34, 418. did not extend to American Colonies, 419. general adoption of, 419. writ of habeas corpus, 420. when national courts may issue, 420. State courts to issue generally, 422. return to, when prisoner held under national authority, 422. not to be employed as a writ of error, 423. application for, need not be made in person, 423, n. what the officer to inquire into, 424. to enforce rights of relatives, 425. PETIT JURY, trial by. See Jury Trial. PETITION, right of, 426, 531. PETITION OF RIGHT, was a declaratory statute, 34, 312. quartering soldiers upon subjects forbidden by, 374. PICTURES, libels by, injury presumed from, 521. indecent, sale of, may be prohibited, 742, 743. INDEX. 859 PILOTAGE, State regulations of, 595, 724. PLURALITY, sufficient in elections, 747, 779. POISONS, regulation of sales of, 741. POLICE POWER, of States not taken away by Federal Constitution nor amendments there to, 11, n. '^ exercise of, by municipal corporations, 243-24Ti — pervading nature of, 707-720. definition of, 704, n. the maxim on which it rests, 706. States no power to relinquish it, 340, 341, 712. power of States to make regulations which affect contracts, 708-720. how charters of private incorporation may be affected by, 710-720. charters cannot be amended on pretence of, 710. nor rights granted by charters taken away, 711. railroad corporations may be required to fence track, 712. and made liable for beasts killed on track, 712. grade of railways and crossings may be prescribed, 714. requirement that bell shall be rung or whistle sounded at crossings, &c., 714. whether carriers of persons may not be made insurers, 715. action may be given for death caused by negligence, 715. sale of intoxicating drinks may be regulated by States, 716. regulation of, to what extent interferes with power of Congress oyer commerce, 717, 718. sale of intoxicating drinks as a beverage may be prohibited by States, 718. payment of United States license fee does not give rights as against State law, 720. quarantine and health regulations by States, 720. harbor regulations by the States, 721. line of distinction between police regulations and interference with com- merce, 722. police regulations may be established by Congress, 724. State requirement of license fee from importers illegal, 594, 723. State regulations to prevent immigrants becoming a public charge, 724. State regulations of pilots and pilotage, 724. Sunday laws as regulations of police, 725. regulation by States of use of highways, 725. owners of urban property may be required to build sidewalks, 726. construction of levees on river fronts, 732. control of navigable waters by States, 726. restrictions on this control, 729. monopolies not to be granted, 728, 729. States may improve and charge tolls, 730. may authorize bridges, 730. when these bridges to be abated, 731. may establish ferries, 731. 860 index/ POLICE POWER — continued. may authorize dams, 732. when the dams may be abated, 732. may regulate speed of vessels, 732, regulations of civil rights and privileges, 733. regulations of business charges, 734. other cases of police regulations, 738. destruction of property to prevent spread of fire, 739. establishment of fire limits, wharf lines, &c., 739. . regulations respecting gunpowder, poisons, dogs, ' unwholesome provi- sions, &c., 740. regulations for protection of public morals, 742, 743. market regulations, 743. regulation of employments, 734, 742, 743. prohibited act or omission may be made criminal, 745. POLICE REGULATIONS, power to establish, may be conferred on municipal corporations, 145, n. See Police Power. POLICE REPORTS, publication of, 549, 550. POLITICAL DEPARTMENT, construction of constitution by, 53-56, 68, 84, n. POLITICAL OPINIONS, citizens not to be proscribed for, 481. POLITICAL POWER, distinguished from judicial, 119, n. POLITICAL RIGHTS, equality of, 481-488, 571-577. POPULAR RIGHTS, not measured by constitutions, 49, n. POPULAR VOTE, submission of laws to, not generally allowable, 137. See Elections. POPULAR WILL, expression of, as to amendment of constitutions, 42. must be obtained under forms of law, 748. See Elections. POSSESSION, importance of, in limitation laws, 449, 450. POST-OFFICES, and post-roads, Congress may establish, 12. inviolability of correspondence through, 370-372. POWDER, police regulations concerning storage of, 740. POWERS, of government, apportionment of, by State constitutions, 44-48i of Congress, 11-13. of State legislatures, 102-109. See Judicial Power; Legislative Powers. INDEX. 861 PRACTICAL CONSTRUCTION, weight to be given to, 81. not to override the. Constitution, 86. PRECEDENTS, impoi-tance of, 63-65. judicial, how far binding, 62-68. law made by, 70, n., 71, n. only authoritative within country where decided, 65. when to be overruled, 67. of executive department, force of, 81. PRECIOUS METALS, in the soil belong to sovereign authority, 643. PRELIMINARY EXAMINATIONS, of persons accused of crimes, 380. publication of proceedings on, not privileged, 551. PRESCRIPTIVE CORPORATIONS, powers of, 236. PRESENCE, ■ of prisoner at his trial, 387. PRESIDENT, powers and duties of, 16. PRESS, LIBERTY of. See Liberty of Speech and of the Press. PRESUMPTION, of constitutionality of statutes, 201, 218. of existence of corporation, 237. of innocence of accused party, 375. of correctness of legislative motives, 220, 253, 257. PRICES, regulation of, 734. PRINCIPAL AND BAIL, custody of principal by bail, 415. PRINTED BALLOTS, answer the requirement of written, 761, n. PRIVATE BUSINESS, taxation to aid, 263-273. PRIVATE CORPORATIONS, distinguished from public, 333, n., 334, n. charters of, are contracts, 334, 335. PRIVATE PAPERS. See Papers. PRIVATE PROPERTY, right to, is before constitutions, 49, 208, 435. of municipal corporations, how far under legislative control, 284, 288. when affected with a public interest, 734-738. owners cannot be compelled to improve, 475, 654, 655. appropriating, under right of eminent domain, 643. trial of right to, 452, 454. protection of, against municipal action, 247. See Eminent Domain; Vested Bights. 862 INDEX. PRIVATE RIGHTS, not to be construed away by the legislature, 54, n. PRIVATE ROADS, cannot be laid out under right of eminent domain, 652. PRIVATE STATUTES, not evidence against third parties, 115. to authorize sales by guardians, &c., when constitutional, 115, 116, 479, 485. PRIVIES, estoppel of, by judgment, 62, PRIVILEGED COMMUNICATIONS, meaning of the term, 523. when made in answer to inquiries, 524. between principal and agent, 524. where parties sustain confidential relations, 524. discussing measures or principles of government, 525. criticising officers or candidates, 529. made in the course of judicial proceedings, 542. made by counsel, 544, 549. by legislator to constituents, 546, 549. by client to counsel, 407. PRIVILEGES, of citizens of the several States, 24-28, 597. citizens not to be deprived of, 14, 24, 357. protection of, re^ts with the States, 358, 753. VOID CONTRACTS. See Contracts. VOID JUDGMENTS. See Jurisdiction. VOID STATUTES. See Statutes. VOLUNTEERS, in military service, municipal bounties to, 274. VOTERS, franchise of, cannot be made to depend on impossible condition, 445, n. constitutional qualifications of, cannot be added to by legislature, 79, n. who are, 490, n., 752, 753. privilege of secrecy of, 760. whether qualifications of, can be inquired into In contesting election, 789-791. See ElbcTIOns. W. WAGERS, upon elections, are illegal, 772< WAIVER, of constitutional objection, 214, 355. of defects m incorporation, 97, n. of irregularities in judicial proceedings, 503. of objection to interested judge, 508, 509. of right to full panel of jurors, 390. 884 INDEX. WAIVER — continued. of right to compensation for property taken by public, 693. in capital cases, 388, 389, n. of elector's right to secrecy, 762, WAR AND PEACE, power of Revolutionary Congress over, 8. control of questions concerning, by Congress, 12. WARD, control of guardian over, 414. special statutes for sale of lands of, 115. WAREHOUSEMEN, regulation of charges of, 734-738. WARRANTS, general, their illegality, 364, 368. service of, in criminal cases, 367. search-warrants, 369. See Unreasonable Searches and Seizures. WATER-RIGHTS, right to front on navigable water is property, 670, 671. right of the States to establish wharf lines, 739. right to use of, in running stream, 686. appropriation of streams under right of eminent domain, 646, 655, 656. See Navigable Waters ; Watercourses. WATERCOURSES, navigable, and rights therein, 72B-732. dams across, for manufacturing purposes, 657-661, 732. bridges over, under State authority, 730. licensing ferries across, 731. construction of levees upon, 656, 732. flooding premises by, the liability for, 670, n. incidental injury by improvement of, gives no right of action, 732. See Navigable Waters ; Water-Rights. WATS. See Highways ; Private Roads ; Roads ; Streets. WEIGHTS AND MEASURES, Congress may fix standard of, 12. regulation of, by the States, 744. WEST VIRGINIA, special statutes licensing sale of lands forbidden, 117, n. divorces not to be granted by legislature, 129, n. protection to person and property by law of the land, 430, n. liberty of speech and of the press in, 511, n. privilege of legislators in debate, 547, n. religious liberty in, 575, n. damaging property in the course of public improvements, 689. exclusions from suffrage in, 753. WHARFAGE, right to, is property, 671. States may establish wharf lines^ 739. INDEX. 885 WHIPPING, punishment by, 323, n. WIDOW, See Dowkk. WIFE. See Divorce; Dower; Married Women. ' WILL, imperfect, cannot be validated after title passed, 112, n. WISCONSIN, special statutes licensing sale of lands forbidden, 116, n. divorces not to be granted by legislature, 129, n. privilege of legislators from arrest, 160, n. title of act to embrace the subject, 169, n. no act to be amended by mere reference to its title, 180, n. time when acts take effect, 189. restriction upon power to contract debts, 273. liberty of speech and of the press, 512, n. privilege of legislators in debate, 547, n. religious tests for ofSce forbidden in, 575, n. , religious belief not to be test of incompetency of witness, 586, n. exclusions from suffrage in, 753. WITCHCRAFT, confessions of, 381. WITNESSES, power to summon and examine before legislative committees, 161. accused parties to be confronted with, 387. not compellable to be against themselves, 384-386, 486. evidence by, in their own favor, 386, n. not liable to civil action for false testimony, 542. unless the testimony was irrelevant, 542, n. competency and credibility of, as depending on religious belief, 586 and n. testimony of wife on behalf of husband, 383, n. . WOMEN, regulation of employments of, 745. may hold office, 749, n. may not vote, 490, n., 753. See Divorce; Dower ;^Married Women. WORKS OF ART, liberty of criticism of, 557. WRITS OF ASSISTANCE, unconstitutional character of, 364-368. WRITS OF HABE4S CORPUS. See Habeas Corpus. Y. YEAS AND NAYS, m some States, on passage of laws to be entered on journals, 94, 168.